law, governance, law, governance,

and development and development

Otto (ed.)
research research

Sharia
Sharia incorporated is an ambitious study of how Islamic law traditions have

Sharia Incorporated
been incorporated into the national legal systems throughout the Muslim
world. Both puritan Islamists and Western alarmists tend to oversimplify and
misrepresent the role and position of sharia. In response, this book takes stock of
the actual legal positions, putting them into their socio-political and historical
Incorporated
contexts. The twelve country chapters, each written by laudable international
scholars speak to the historical evolution of Islamic, legal, and political ideas and A Comparative Overview of the
practices. They consider the key legal issues raised by the ‘Islamic awakening’ Legal Systems of Twelve Muslim
of recent decades. Otto’s conclusion presents the main findings of this unique
comparative study and explains why the incorporation of sharia is such a thorny Countries in Past and Present
governance problem for any government in today’s Muslim world. It is intended
that this wealth of facts and analyses contributes to current debates on sharia, Edited by
law, and politics. Jan Michiel Otto
Jan Michiel Otto is Professor of Law and Governance in developing countries
at Leiden University, and director of the Van Vollenhoven Institute for Law,
Governance and Development.

Sharia incorporated is essential reading for anyone who seeks a better informed, more
nuanced picture of law in Muslim majority countries than we normally get. Without being
starry-eyed, the country studies show the complexity of reconciling law with custom, and
religious with secular laws. Sometimes violent Puritanism clashes with older forms of
religious discourse, market economies affect older ways of life, and modern states struggle
to make traditional and modern institutions cohere. If nothing else, this book offers a
necessary antidote to glib thinking and ignorant prejudice.
– Prof.dr. Ian Buruma 

isbn 978 90 8728 057 4

www.lup.nl

LUP leiden university press

OTTO_Sharia2_WT_01.indd 1 04-06-10 16:27

SHARIA INCORPORATED
Law, Governance, and Development

The Leiden University Press series on Law, Governance, and

Development brings together an interdisciplinary body of work about
the formation and functioning of legal systems in developing countries,
and about interventions to strengthen them. The series aims to engage
academics, policy-makers and practitioners at the national and interna-
tional level, thus attempting to stimulate legal reform for good govern-
ance and development.

General Editor:
Jan Michiel Otto (Leiden University)

Editorial Board:
Abdullahi Ahmed An-Na’im (Emory University)
Keebet von Benda-Beckman (Max Planck Institute for Social
Anthropology)
John Bruce (Land and Development Solutions International)
Jianfu Chen (La Trobe University)
Sally Engle Merry (New York University)
Julio Faundez (University of Warwick)
Linn Hammergren
Andrew Harding (University of Victoria)
Fu Hualing (Hong Kong University)
Goran Hyden (University of Florida)
Martin Lau (SOAS, University of London)
Christian Lund (Roskilde University)
Barbara Oomen (Amsterdam University and Roosevelt Academy)
Veronica Taylor (The Australian National University)
David Trubek (University of Wisconsin)
 SHARIA INCORPORATED

A Comparative Overview of the Legal Systems of

Twelve Muslim Countries in Past and Present

editor Jan Michiel Otto

Leiden University Press

Grateful acknowledgement is made to the following institutions in The
Hague and Leiden for their generous support of this study:

Scientific Council for State Policy (WRR)

Netherlands Organization for Scientific Research (NWO)
Ministry of Foreign Affairs
Leiden University (Faculty of Law; Leiden University Center for the
study of Islam and Society (LUCIS); Van Vollenhoven Institute for Law,
Governance and Development (VVI)

Cover design: Studio Jan de Boer, Amsterdam

Layout: The DocWorkers, Almere

ISBN 978 90 8728 057 4

E-ISBN 978 94 0060 017 1
NUR 741 / 820

© J.M. Otto / Leiden University Press, 2010

All rights reserved. Without limiting the rights under copyright re-
served above, no part of this book may be reproduced, stored in or in-
troduced into a retrieval system, or transmitted, in any form or by any
means (electronic, mechanical, photocopying, recording or otherwise)
without the written permission of both the copyright owner and the
author of the book.
Table of contents

Acknowledgements 7
Editorial note 10
Preface 11

1 Introduction: investigating the role of sharia in national law 17

Jan Michiel Otto
2 Sharia and national law in Egypt 51
Maurits Berger and Nadia Sonneveld
3 Sharia and national law in Morocco 89
Léon Buskens
4 Sharia and national law in Saudi Arabia 139
Esther van Eijk
5 Shari‘a and national law in the Sudan 181
Olaf Köndgen
6 Islam and national law in Turkey 231
Mustafa Koçak
7 Sharia and national law in Afghanistan 273
Nadjma Yassari and Mohammad Hamid Saboory
8 Sharia and national law in Iran 319
Ziba Mir-Hosseini
9 Sharia and national law in Pakistan 373
Martin Lau
10 Sharia and national law in Indonesia 433
Jan Michiel Otto
11 Sharia and national law in Malaysia 491
Andrew Harding
12 Sharia and national law in Mali 529
Dorothea Schulz
13 Sharia and national law in Nigeria 553
Philip Ostien and Albert Dekker
14 Towards comparative conclusions on the role of sharia
in national law 613
Jan Michiel Otto

Annexe: Tables 655

Glossary 661
About the contributors 673
Acknowledgements

My deep appreciation goes to my fellow researchers, who wrote the

country studies constituting the core of this book. It has been a great
privilege and pleasure to see this collaborative work developing under
the capable hands of Maurits Berger, Léon Buskens, Albert Dekker,
Esther van Eijk, Andrew Harding, Mustafa Koçak, Olaf Köndgen,
Martin Lau, Ziba Mir-Hosseini, Philip Ostien, Mohammad Hamid
Saboory, Dorothea Schulz, Nadia Sonneveld, and Nadjma Yassari.
I am greatly indebted to Jan Schoonenboom and Wendy Asbeek
Brusse, who initiated and assigned the project on behalf of the
Scientific Council for State Policy (WRR). Without their unwavering
support and critical counseling, this project could not have been com-
pleted. The intense and stimulating discussions with Maurits Berger,
Albert Dekker and Maarten Barends in the initial phase, still fill me
with sweet memories.
I am also grateful to Baudouin Dupret and Rudolph Peters, who read
the whole manuscript as referees, and provided us with advise. Various
chapters of the book were presented to a wider audience at conference
panels of the International Law and Society Association, in 2008 in
Montreal and in 2009 in Denver. I thank my colleagues from SOAS,
Andrew Harding (now at Victoria), and Martin Lau, as well as Philip
Ostien and Léon Buskens, for co-chairing those sessions.
For years, the Van Vollenhoven Institute for Law, Governance and
Development (VVI) has been the home base for a dozen dedicated aca-
demics, who carry out challenging socio-legal research and teaching
projects all over the world. Combining the ambitious project of this
book with other VVI tasks, notably that of being the institute’s director,
was challenging in the least. This situation did not only cause consider-
able delays of the project, but also put quite some stress on my collea-
gues at the institute. I offer both my apologies and my gratitude to my
colleagues, both inside and outside the VVI, who tolerated and sup-
ported me, took over the watch, and contributed to the project in many
ways. Albert Dekker, my longtime colleague at the VVI, has been a
model of generosity and efficacy in an amazing number of capacities,
such as librarian, researcher, author, and coordinator. I owe more than
thanks to him. For valuable comments and discussions I am grateful
8 ACKNOWLEDGEMENTS

to Theo Veenkamp as well as to Adriaan Bedner; thanks to their help

and especially to the all-out efforts of Jan van Olden, Ab Massier, and
Kari van Weeren, we can finally see this book completed and the VVI
still alive and kicking.
I would like to thank Julie Chadbourne for her editorial assistance
with regards to the country chapters in this book. Her dedication and
meticulous efforts have been crucial for bringing this project close to
the finish line. Stijn van Huis also contributed substantively by his care-
ful reading of and commenting on all country chapters, and by compos-
ing the glossary, with Julie’s help. Nadia Sonneveld helped with the
editing of several chapters. At the VVI Marianne Moria, Kora
Bentvelsen, Sylvia Holverda, Dennis Janssen, Sandra Moniaga, Tristam
Moeliono, Benjamin van Rooij, Myrna Safitri, Ahmed Tawfik, and
Janine Ubink were of help for one aspect of the book or another.
Hannah Mason edited the introductory and concluding parts of this
book, and helped to make all other sections camera ready; she also
proofread the manuscript. With her linguistic and organisational skills,
she made the completion of this project in its final months both a rea-
lity and a pleasure.
To the Faculty of Law, especially to its Dean Carel Stolker, I express
my sincere gratitude for creating a supportive environment for our re-
search, similarly to the headquarters of Leiden University. LUCIS, the
new Leiden University Center for the Study of Islam and Society, of
which the establishment, early 2009, was necessitated by the unfortu-
nate demise of the inter-university ISIM institute, supports many re-
search projects in this field. LUCIS also provided funding for the con-
ference in June 2010, where the authors of this book convened, for the
first time, to discuss recent developments in the countries of study, and
to launch this publication.
In various stages of this project translations of country studies were
made, first from English to Dutch and finally from Dutch to English. I
am grateful to Anne Saab, Will Saab, and Kate Delaney for their transla-
tion work, and to the Netherlands Organisation for Scientific Research
(NWO) for its generous support of the translation. Revisions, updates
and other changes made by authors and editor are however consider-
able, and final responsibility for the text rests with them only.
I record my gratitude to my warmly supportive publisher, Yvonne
Twisk of the reborn Leiden University Press as well as to Chantal
Nicolaes, Erik van Aert and Saskia de Vries of Amsterdam University
Press for their admirable patience and wonderful assistance throughout
this project.
Of my dear parents, Will and Ank Otto, my father has not lived to
see the completion of this book, but his spirit and my mother’s never-
ending support have always been there. In a most literal sense, my wife
ACKNOWLEDGEMENTS 9

Marileen and our children, Miriam, Benjamin and Saskia, have joined,
supported and taught me more than I could ever expect.

Jan Michiel Otto

Amsterdam/Leiden, March 2010
Editorial note

Transliteration and glossary

As for the transliteration of Arabic terms, the authors of each chapter
have followed their own rules regarding the use of diacritical symbols.
In the introduction and conclusion I have not used any diacritical sym-
bols, following for example The Oxford Dictionary of Islam. This means
that shari‘a will appear as ‘sharia’. For the meaning of non-English,
mainly Arabic, terms, please refer to the Glossary in the back of this
book.

Detailed tables of contents

Please note that this book does not contain an index. The clear-cut
structure of the chapters combined with the detailed tables of contents
at the start of each country study are believed to provide sufficient gui-
dance to the reader.

Tables
The tables in this book, other than those where a source is explicitly
mentioned, have been composed by the editor and are based on conclu-
sions drawn by the individual authors. The tables serve to allow the
reader to compare countries on specific themes or issues. The tables
can be found in the Chapter 1, Chapter 14 and in the Annexe.
Preface

In 2005 a reputed American human rights institute, Freedom House,

published a book entitled Radical Islam’s rules. The worldwide spread of
extreme Shari’a law. The book argues that since the 1980s Muslim coun-
tries have started replacing their laws with extreme and barbarous ‘sha-
ria’. On the basis of seven country studies it claims that sharia, as it has
been applied in those countries, undercuts legal systems, frequently
employs cruel punishments, threatens Muslims who are not part of the
dominant group, and reduces women to secondary status. All states,
where such laws have been imposed, it says, produce terrorism
(Marshall 2005: 15). In the foreword former CIA director James
Woolsey promises: ‘We will win this current long war […] by defeating
the Islamist ideology.’
While Freedom House thus advised the United States government to
wage war against the Islamist ideology in general and against the forces
that supposedly promote sharia in particular, the same problem became
the subject of a research project undertaken by an institute in another
Western country, based in The Hague in the Netherlands – one which
would eventually lead to this book. The Scientific Council for State
Policy, a think-tank of the Dutch cabinet (WRR, Wetenschappelijke Raad
voor het Regeringsbeleid) consulted me in 2003 about the possibility of
carrying out a study on sharia. This project would be the third in a ser-
ies of projects concerning Islam. One stemmed from an inquiry by my
colleague Erik-Jan Zürcher about whether EU accession of Turkey
would be problematic, because of the fact that most Turks are Muslims.
The other sprang forth from a study by another colleague, Nasr Abu
Zayd, about reformation of Islamic thought.
The WRR was obviously concerned about deteriorating relations be-
tween the West and the Muslim world and had questions about the sup-
posedly increasing role of extreme sharia in the Muslim world. Is sharia
really a fixed set of norms that applies to all Muslims as their supreme
rule? Do we see an Islamist subversion of national legal systems? Has
the legal status of women indeed deteriorated, and have inhuman pun-
ishments, such as stoning and hand-cutting, become common practice
throughout the Muslim world? Have conservative religious scholars be-
come the key decision makers instead of elected politicians? And,
12 PREFACE

finally, is it really true that in the last 25 years legal systems in the
Muslim world have been islamised and moved away from human
rights, democracy, and the rule of law?
At the time of the start of the WRR projects, Islam had become a ma-
jor issue in Dutch politics. Had it hitherto been regarded as a world re-
ligion with its good and bad sides like any religion, since the late 1990s
maverick politicians had risen to prominence by calling Islam ‘back-
ward’ (Pim Fortuyn, Ayaan Hirsi Ali) and its Prophet ‘a paedophile’
(Hirsi Ali). Likewise, filmmaker and columnist Theo van Gogh, before
he was brutally murdered by a Moroccan fundamentalist, wrote consis-
tently about Moroccan immigrant Muslims as ‘the goatfuckers’ or ‘the
fifth column’. He depicted the mayor of Amsterdam Cohen, admired
by many for his capacity to bridge and unite, as soft and naïve, and
even called him a ‘Nazi-collaborator’. The heated atmosphere in the
Netherlands during the years after 9/11 has been captured well by Ian
Buruma in his book Murder in Amsterdam. The WRR research projects
on Islam were to take place in turbulent conditions and could count on
sharp criticism, regardless of the results.

Academic research about sharia is usually concerned with studying the

classical sources of sharia, notably the fiqh-books in which Islamic scho-
lars discuss cases and the application of rules and principles. The focus
of such studies is often on the past, on the heyday of sharia, when it
was the living law, developed and maintained by religious scholars
throughout the Muslim world. However, ‘[t]o practice law in the mod-
ern era is to be an agent of the state’ (Hallaq 2009: 549). The main is-
sue at present has become the incorporation of sharia into state law.
Which aspects? What exactly? To what extent? Where? When? How?
Why? These questions formed the foundations for this study.
A study of this kind seemed to perfectly fit in with the research tradi-
tion of the Van Vollenhoven Institute of Leiden University, where since
the 1980s my colleagues and I had been studying law and governance
in developing countries. Some of the legal systems we had focused on,
happened to be situated in Muslim countries, for example Indonesia,
Egypt, and Morocco. In the academic domain of ‘law, governance and
development’, which dates back to the study of colonial law and admin-
istration, we employ an interdisciplinary tradition, combining legal and
social science approaches with language, culture, and history. During
thirty years of research, I had become aware of the longstanding politi-
cal tensions and legal problems surrounding the position and role of
sharia within national legal systems. This concern was shared by my
colleagues at the School for Oriental and African Studies in London,
whose help has proven essential for the undertaking of this project.
PREFACE 13

On a more personal level, I observed a stark contradiction between

what I experienced during in-country field research and what was con-
sidered public opinion in the West. With my wife Marileen, a medical
anthropologist, I spent years living in Muslim areas, in the mid 1970s
near Lucknow, a centre of Shia religion in North India, in the early
1980s in a village in rural Upper Egypt, and ten years later, with our
three children, in an urban kampong on the outskirts of Bandung,
Indonesia. We had developed personal relations with hundreds of
Muslims of many different backgrounds. After 2001, back in the
Netherlands, dominant discourses and media reports began to stereo-
type Islam, Muslims, and sharia in a consistently negative manner.
Disturbing news and images related to sharia came in not only from
Saudi Arabia, Iran, and Afghanistan, but also from Indonesia, Egypt,
and Morocco, countries that had previously been regarded as ‘moder-
ate’. It seemed that there was a consistent emphasis in the media on
horrifying events happening in the Muslim world, whilst developments
in other parts of the world were ignored or paid minimal attention to.
In late 2003, the project started. The first challenge was the selection
of countries: in order to cover a considerable, representative part of the
Muslim world, I set out to select a number of countries, which together
would constitute about two-thirds of the world Muslim population.
Next, the selection of countries needed to represent the Muslim world
in all its variety, i.e. a wide regional spread; a full range of secular, mod-
erate, and orthodox regimes; and a collection of rich, middle-income,
and poor countries, etc. It was decided that the project would focus on
the following regions and countries. In North Africa and the Middle
East the WRR and I selected five countries, namely Egypt, Morocco,
Saudi Arabia, Sudan, and Turkey. The three countries selected in
Central and South Asia were Iran, Pakistan, and Afghanistan. In
Southeast Asia we opted for Indonesia and Malaysia. And finally,
Nigeria and Mali were to represent Sub-Saharan West Africa.
The second challenge consisted of finding authors with sufficient ex-
pertise in the law and the socio-political context of the country con-
cerned, who could provide impartial and objective analysis. They
needed to be willing to participate in a collaborative research undertak-
ing about a hotly contested issue with an uncertain outcome. I feel pri-
vileged to have collaborated with over a dozen authors, who share a
longstanding commitment to the study of law and society. All were
asked to adhere to the same format, both in terms of subjects as well as
historical periods. Much to my relief, they were all willing to go along
with the proposed outline.
In 2006 the findings and recommendations of this research were
published in three volumes.1 These books, like other WRR studies, were
written in Dutch to serve a Dutch audience. However, given the nature
14 PREFACE

of the subject matter and the diverse backgrounds of the authors, an

English language version had to appear. In 2007, we began work on
this book. A few new authors joined the team. We took the time to dis-
cuss, revise, and rewrite. All authors fastidiously updated their country
studies through to early 2010.
The conditions which gave impetus to this project in 2003 have not
changed. Since 9/11 the West has been overcome with ‘[n]egative stereo-
types of Islamic law as inflexible, arbitrary, and discriminatory and of le-
gal institutions as oppressive, coercive, and incompatible with democ-
racy’ (Hirsch 2006: 168). In Europe, people’s fear of terrorist attacks is
combined with an anxiety related to signs of islamisation of their own
society. Consequently, Europe has seen the rise of new anti-Islam poli-
tics, led by populist leaders, such as the Dutch parliamentarian Geert
Wilders. Declaring Islam to be the root cause of world problems and
depicting sharia as a backward, medieval law has given him and his col-
leagues enormous popularity and electoral success.
Politicians, such as Wilders, have close connections with a network
of publicists and academics, both in Europe and the United States, who
have embraced versions of Huntington’s clash of civilisations theory, as
well as the late work of Bernard Lewis. Huntington had suggested al-
ready in the late 1990s that Western civilisation is threatened by
Islamic civilisation. In his view, the rule of law, which he describes as a
cornerstone of Western civilisation, has come under threat whilst the le-
gal systems of Islamic countries are being increasingly islamicised
(Huntington 1998: 116). In the aftermath of 9/11, Lewis produced sev-
eral short books in which he argued that ‘almost the entire Muslim
world’ can be seen as a ‘failure of modernity’ (Lewis 2003: 97). He
claimed that Muslims recognise sharia as the highest and only norm,
and that for them the state is nothing more than an expression of reli-
gion (2002: 106).
Whatever may be true of these statements, Lewis, his European epi-
gones, and the neo-conservative architects of Bush’s foreign policy,
found welcome support in the writings of a few ex-Muslims who had
migrated to the West and found a new mission in warning against
Islam. For example, Ibn Warraq, author of the much-cited book Why I
am not a Muslim (1995) stated: ‘The truth of the matter is that Islam
will never achieve democracy and human rights if it insists on the ap-
plication of the Sharia.’
While the man in the street in the West believes such allegations to
be hard facts, most internationally reputed scholars of Islamic law
would argue the opposite. It is a mystery that their solid and thorough
work on sharia has hardly been able to counter the abovementioned
alarmist, confrontational discourse about sharia. Perhaps this is because
academic writing remains nuanced and specialised, – often dealing only
PREFACE 15

with particular aspects or particular countries –, whereas alarmist

claims about the rise of extreme sharia are rather absolute and general,
always referring to Islam as a whole and to ‘the Muslim world’, thereby
making it difficult to refute their arguments.
In sum, there is a gap, which I hope this book will be able to fill at
least partly. It presents a new collaborative effort to lay the groundwork
for the analysis of a major question, which will continue to engage
many minds and rouse high emotions, both in the Muslim world as
well as in the West. How can sharia-based law exist as an integral part
of rule-of-law-based national legal systems?
1 Introduction: investigating
the role of sharia in
national law

Jan Michiel Otto

Table of contents
1.1 Theme, purpose, and approach 19
What this book is about 19
Purpose and perspectives 19
Approaches chosen 21
1.2 Sharia incorporated 23
Conceptualisation of sharia and Islamic law 23
Sharia incorporated 26
1.3 Countries, concerns, and contested issues 28
Selecting twelve Muslim countries 28
Main concerns, contested issues, common assumptions, and
questions 29
Legal status of women 31
Cruel corporal punishments 31
Violations of human rights 32
Economy and finance 33
Monitoring the islamisation of law 33
1.4 National legal systems, three delicate
areas of law 34
Composition of national legal systems 34
Dysfunctions of legal systems 35
Rule of law and human rights: authoritative standards? 37
1.5 Ideological-religious currents and discourses 38
The moderate-puritan dichotomy and beyond 38
Major discourses about incorporation of sharia 40
1.6 Towards a realistic history of
sharia and national law 41
Selecting turning points and historical periods 41
The millennium of sharia as the living law (c. 800-c. 1800) 42
1.7 A voyage around the Muslim world 44

Notes 48
Bibliography 48
INTRODUCTION 19

1.1 Theme, purpose, and approach

What this book is about

This collaborative study intends in the first place to explore the incor-
poration of sharia-based1 rules in national legal systems. It tries to an-
swer pertinent questions about islamisation of law throughout the
Muslim world: Where? When? To what extent? How? Why? The fact
that since the 1970s a number of Muslim countries, notably Iran,
Pakistan and Sudan, have followed this course has been a cause for con-
cern, both in Muslim countries and in the West. It has suggested a side-
lining of modernising groups, weakening of the legal positions of wo-
men and religious minorities, and a return to cruel corporal punish-
ments. One can hardly avoid the impression that islamisation of law
equals disrespect for the rule of law and human rights. Yet, the discus-
sion about these developments is hardly based on actual facts; rather, it
is filled with controversy, speculation and all sorts of prejudices.
This book provides a factual and comparative overview of the role
and position of sharia-based law in the national legal systems of twelve,
representative Muslim countries. Each country study consists of two in-
terrelated parts. The first part of each chapter describes the history of
how the present legal systems of Muslim countries have been shaped
by socio-political developments. It records major changes in governance
and law, tracing in particular the role of Islam and sharia in this pro-
cess. The second part presents the actual legal situation and shows to
what extent national legal systems have or have not distanced them-
selves from the tenets of ‘classical sharia’ (see 1.2 below); these sections
also address the compatibility of these systems with the rule of law and
human rights (see 1.4 below). The country studies focus on those areas
of national law, where the introduction of sharia has caused most con-
cern, namely constitutional law, family and inheritance law, and crim-
inal law.

Purpose and perspectives

This book does not only offer a wealth of data, it also employs a set of
conceptual perspectives, or frames, in order to forge the data into a use-
ful body of knowledge.
Through our first frame, we look at a particular country and its na-
tional legal system, for we can only start to understand the relationship
between sharia and national law by looking at countries individually.
Therefore this book is in the first place a repository of country-based
knowledge. In addition, this frame also serves as a tool to gain insight
into the broader picture of ‘the Muslim world’. The first frame is
20 JAN MICHIEL OTTO

further explained in 1.3 and 1.4. Preliminary results are presented in

the concluding chapter in 14.4.
Our second frame is thematic: the book focuses on what are probably
the four main concerns that have arisen and dominated the political de-
bate about sharia-based law over the last few decades. Those concerns
are the alleged supremacy of sharia, the status of women, degrading
punishments, and human rights. In this aspect, the book differentiates
itself from similar collections which usually focus on one single theme,
either constitutional law, or women, or criminal law, or human rights.
This frame is explained in 1.3, and results can be found in 14.3.
Our third perspective is historical. We look at how the relationship
between sharia and national law has evolved since 1800, with a focus
on the twentieth century, and following developments until the present
day. This is explained below in 1.6; results are summarised in 14.2.
Our fourth perspective is governance. It regards the relationship be-
tween sharia and national law essentially as a major challenge for each
state, i.e. to form and apply the main rules for a stable, prosperous, and
just society, interacting with major political players and social groups.
Section 14.5 reflects on governance aspects.
The fifth frame of this book addresses the struggle between ‘moder-
ates’ and ‘puritans’ in each country and in the Muslim world at large;
this dichotomy plays a crucial role in the discussion on factors that in-
fluence the relationship between sharia and national law. The points of
departure of both ‘camps’ are explained in 1.5. Going beyond this di-
chotomy, the study will show that the ideological-religious spectrum is
influenced by a number of other (f)actors adding to the complexity of
the picture.
The sixth perspective is normative pluralism. It positions sharia as
one of the normative systems that have had an impact on the people
and states in the Muslim world. It is a fact that customary law, colonial
law, foreign law, and international law, including human rights law,
have also exerted significant influence on the development of national
law and local legal practices until this very day (see 14.5).
This multiplicity of frames allows the book to be used for several pur-
poses and by various readerships. The study enables country-by-country
comparison, whilst at the same time all periods, governance contexts,
areas of law, concerns and issues can be compared. In addition, the
book may help in developing a realistic overview of the problem as a
whole. It strives to appeal to students of law, of history, of governance,
and of Islamic studies. It also aims at informing decision-makers and
observers in the field of foreign policy and international relations, for
whom our assessments of the (in)compatibility of sharia-based law with
the rule of law, including human rights, may be useful. And finally, it
may serve to counterbalance the image of sharia as depicted by the
INTRODUCTION 21

constant stream of media reports and the alarmist responses which are
mentioned in the preface of this book. Perhaps reading this book will
help to put things in perspective.

Approaches chosen
The focus of this book lies on the contemporary legal systems of twelve,
predominantly developing countries with clear Muslim majorities.2 The
book certainly does not pretend to be a major book about sharia as
such. There are excellent works by renowned authors such as Hallaq
(2009), Vikør (2005), or the earlier generation of Coulson (1964) and
Schacht (1964), who focus on sharia – or Islamic law – itself. They do
so mostly from a historical perspective, usually dealing with recent de-
velopments only briefly at the beginning or end of their studies. They
explore the issues of the formation and theory of sharia, its methodolo-
gies, and its prescriptions, in great detail. There is also a rich selection
of literature about particular aspects of sharia, on Islam and constitu-
tional law, Islam and human rights, the status of women and family
law in the Arab world, Islamic criminal law, Islamic courts, etc.
In contrast, this book looks at the processes of incorporation of sharia
in national legal systems from a socio-legal perspective. This means that
the authors do not only describe the contents of the law, but also try to
shed light on the formation and functioning of law in context. One of
the strong points of socio-legal scholarship is its capacity to distinguish
law from social reality, ‘law in the books’ from ‘law in action’, text from
context. This is important because it is precisely in this border area that
confusion and contestation about sharia have often originated.
As for the historical parts of the respective country chapters, the
authors have identified longitudinal and recent trends. In the sections
about recent history (1985 to the present) they pay particular attention
to governance contexts, facilitating our understanding of why actors
made certain decisions. Thus we have looked at law as a reflection of
political and social forces and values that have evolved over time in par-
ticular societies.
The study’s focus on national laws raises questions about its rele-
vance, such as: Do these laws really matter to ordinary people? How do
these laws relate to the local social realities of justice seekers? Several of
the chapters refer to studies in legal anthropology about the interaction
between citizens and legal institutions. I regret that the scope of this
project did not allow more space to the authors, some of whom are in-
deed social and legal anthropologists, to go down to the grassroots level
and present local case studies. Still, you may notice that much of their
writing is informed by first-hand knowledge of local developments. In
22 JAN MICHIEL OTTO

this way, the book tries to link law not only to history and governance,
but also to society at large.
The term ‘Muslim countries’ in this book is used merely to describe
the setting. It does not imply any social, political, or legal characteristic,
and has no explanatory value. The term ‘developing countries’ is more
important in this respect. The countries in this book are often societies
that face serious development problems. Not only do many developing
countries suffer from insecurity, economic stagnation, poverty, injustice,
and a lack of quality education and proper health care, they also see
first-hand that their traditional rural societies are falling apart in the
face of rapid urbanisation. Breakdown of social control in such transi-
tional societies has led to a rise of social ills common in almost every
country in the world – crime, prostitution, drug abuse, drinking. Often
socio-political conditions are not conducive for national law and govern-
ance to take over the full and effective regulation of society. Corruption,
lack of resources, and other inefficiencies appear to be endemic.
The approach taken in this study fits within the academic domain
that addresses the formation and functioning of legal systems of devel-
oping countries and their contributions to governance and develop-
ment, which at a number of universities worldwide is now called Law,
Governance, and Development (LGD) studies. The impetus for the
study at hand stems from that intellectual tradition. LGD studies have
their roots partly in the studies of colonial law and postcolonial law.
Generally, LGD studies is regarded as part of the broader category of so-
cio-legal studies, which combines the study of law with the legal specia-
lisations of other disciplines.3
Many LGD case studies have drawn gloomy conclusions about the ef-
fectiveness of national law in Asia, Africa and Latin America, about in-
justices and the lack of ‘real legal certainty’. Explanations often refer to
the colonial heritage of legal pluralism, the imbalance of political power,
uneven economic conditions, and/or legal and institutional weaknesses.
These explanations differ considerably from an approach, which mainly
points at the islamisation of law as the root cause of injustice and fail-
ing legal systems in the Muslim world. Such approach has become
fashionable among some islamologists and philosophers, who consider
Koranic verses as the unchangeable, uniform, normative essence of
Muslim thought and behaviour. In contrast, socio-legal scholars focus-
ing on the interaction between law and social context, are prepared to
observe change, and diversity, both in legal texts as well as in social
practices.
INTRODUCTION 23

1.2 Sharia incorporated

Conceptualisation of sharia and Islamic law

This book will often refer to the term ‘sharia’. Like its counterpart
‘Islamic law’ the term ‘sharia’ is surrounded with confusion between
theory and practice, between theological and legal meanings, between
internal and external perspectives, and between past and present
manifestations.
According to Islamic jurisprudence, theology and historiography, the
rules of sharia are based on the revelation by God of his plan for man-
kind to the Prophet Muhammad until his death in 632 (Vikør 2005:
20). In order to interpret God’s will from the available sources, religious
scholars developed Islamic jurisprudence (fiqh) from the eighth century
onwards. The scholars (ulama) put God’s revelation into effect, drafting
a scientific, legal corpus of behavioural rules. Notably, in the first two
centuries numerous scholarly fiqh-books were filled with case studies
and rules. From the outset, many differences of opinion cropped up,
for example disagreements over the sources of sharia, its unchanging
character, its scope, and its validity ‘as law’. Some of the authors, such
as Al-Hanafi, Al-Maliki, Al-Shafi'i and Al-Hanbali gained great influ-
ence. Their names were given to different fiqh-schools, which came to
represent ‘the dominant opinions’ of what we may call ‘classical’ sharia,
especially since two centuries later Muhammad’s ‘gate to free interpre-
tation (ijtihad) was closed’.4

The profession of the Muslim scholars who, thus, studied and devel-
oped the sharia, has always been a mixture of what we nowadays would
call theologians and jurists. In Arabic those among the ulama, who spe-
cialise in Islamic jurisprudence are referred to as faqih (plur. fuqaha, ex-
pert of fiqh, jurist, or ‘legal’ scholar). They may work as a scholar and
teacher in a seminary, as a mufti (the one who issues fatwas or legal opi-
nions about what rule of sharia applies to a particular case) or as a
judge (qadi).5 The broader category of ulama, is usually translated as ‘re-
ligious scholars’, or just ‘scholars’. While in this book different authors
use all of these terms sometimes in different ways, in the introduction
and conclusion of this book I will refer to the ulama as ‘scholars’.
Islamic law has often been said to be a law of scholars, as opposed to ci-
vil or continental law, which is often regarded as law-maker’s law, and
common law, which is supposedly judge-made.
It has been the perennial objective of Islamic scholars to discover and
develop ‘the sharia’ as a concrete body of rules and principles.
Common people used to consult the scholars, asking them what ‘the
sharia’ would prescribe in a particular case. Meanwhile, the many
24 JAN MICHIEL OTTO

differences in interpretation between, for example, Sunnis and Shiis,

and between the different schools of law, are obvious. Scholars who stu-
died Islamic jurisprudence have explained the diversity as a result of its
open, discursive character, which should help to bridge the gap between
the divine abstract source and the variety of human behaviours and con-
texts to which it should apply. There seems to be agreement among
modern scholars about the very diversity of sharia itself. Vikør (2005: 1)
states in the introduction to his history of Islamic law:

There is no such thing as a, that is one, Islamic law, a text that

clearly and unequivocally establishes all the rules of a Muslim’s
behaviour. There is a great divergence of views, not just between
opposing currents, but also between individual scholars within
the legal currents, of exactly what rules belong to Islamic law.
The jurists have had to learn to live with this disagreement on
and variety in the contents of the law.

Likewise, another scholar of Islamic law, Peters (1997: 260) wonders if

sharia is a legal system at all ‘[…] because such a diversity of opinions
exists next to one another [and] [e]ven within the schools of law there
are often differences of opinion’. The rules of sharia are not unambigu-
ously laid down in the law, but rather they are formulated in scholarly
explorations or, as Peters states, ‘in a continuous debate with their pre-
decessors and colleagues’ (ibid: 260, translation by JMO). Fuller (2003:
57), a senior political observer, for instance, states:

There is no one Sharia but rather many different, even contest-

ing ways to build a legal structure in accordance with God’s vi-
sion for mankind. A single Sharia doesn’t exist. It is not a book
that one can purchase. It is shaped, and interpreted by humans’
differing understanding of what the Qur’an and the Prophet’s
life and experience mean.

Yet, we face the problem that many people – from ‘puritan’ Islamists to
their Western critics – continue to assume and propagate that the sharia
is a uniform thing, a fixed set of norms that is binding upon all
Muslims, regardless of where they live, and which cannot be moder-
nised, because it is ‘divine and unchangeable’. Indeed, many nations,
groups, and individuals use the term sharia to present their interpreta-
tion as the definitive divine law. How then can this idea of a fixed, un-
changeable sharia, deriving from Islamic theology, be consonant with
the social reality of widely diverging interpretations of sharia, or, as
Fuller and others suggest, of a diversity of ‘sharia’s’? A realistic solution
starts with the acknowledgment that the manifold ways in which law-
INTRODUCTION 25

makers, judges, religious scholars, academics, and others refer to the

sharia, should be analysed and categorised. In the course of this project
it has proven useful to discern four distinct ways in which the term
sharia is used, namely as divine abstract sharia, as classical sharia, as
historically transferred sharia, and as contemporary sharia.
First, divine, abstract sharia: this is God’s plan for mankind and as
such contains the rules for good order and human behaviour that
should guide his religious community. The existence of this divine, ab-
stract sharia is accepted as a fact by all devout Muslims, ‘moderate’ or
‘puritan’ (see 1.5). Before it can be applied in practice it needs explana-
tion and elaboration by scholars. Al-Azmeh (1993: 12) has considered
the implications of this abstract meaning of sharia for the debates sur-
rounding islamisation of law, noting that:

Islamic law is not a code. This is why the frequently heard call
for its ‘application’ is meaningless, most particularly when calls
are made for the application of sharia – this last term does not
designate law, but is a general term designating good order,
much like nomos or dharma […].

Secondly, classical sharia: this is the corpus of rules, principles, and

cases that were drawn up by fiqh-scholars in the first two centuries after
the Prophet Muhammad. Sharia, in this sense, is concrete and refers to
the classical writings of leading scholars and the early commentaries on
them. As such, classical sharia necessarily bears the traces of how reli-
gion, society, and politics were experienced in particular parts of the
world more than a millennium ago.
Thirdly, historically transferred sharia: this includes the whole body of
interpretations developed and transmitted throughout a history of more
than a 1,000 years across the Muslim world, from the alleged closure of
the gate of free interpretation to its reopening in the nineteenth century,
and up to the present day. The notion of historically transferred sharia
encompasses an immense, full spectrum of considerations and ideolo-
gies – ranging from personal beliefs to state ideology, from living law to
formal positive law, from moderate to ‘puritan’ interpretations. While
classical sharia, as taught and interpreted by mainstream, conservative
religious scholars, has been the main point of reference in most
Muslim countries, certain modernist scholars have seen and seized op-
portunities for smaller and larger reforms of sharia. Usually, though
not always, they did so on the basis of the classical religious sources
and commentaries. This was especially so in the nineteenth and twenti-
eth centuries when many interpretations of the classical sharia were in-
troduced as reforms of the national legal systems of Muslim countries,
26 JAN MICHIEL OTTO

including, for example, throughout the Ottoman Empire and in Egypt,

Iran, Afghanistan, and Pakistan.
Lastly, contemporary sharia: this concept of sharia refers to the whole
of principles, rules, cases, and interpretations that are actually in use at
present throughout the Muslim world. Contemporary sharia has be-
come a vast, fragmented, and dispersed mass. Ideas travel ever faster
following domestic and international migration, the missionary (daqwa)
movements since the 1970s, and the use of journals, radio, television,
and the Internet. While governments, institutes of higher religious edu-
cation, and mass movements all promulgate and publish their own ver-
sions of sharia, individuals and study groups around the world seek
their own preferred scholars to instruct them about the prescriptions of
‘the sharia’.
Hopefully this fourfold distinction will help the reader, when coming
across the term sharia in this book, to understand from its context
which notion of sharia is actually meant. It may also help to recognise
those instances in which different meanings of sharia are conflated,
such as in the famous phrase ‘introducing the sharia’. Some authors,
also in this volume, use the term sharia mainly for the divine sharia,
which is abstract and general. They call the other three – all results of
human activity – fiqh.

Sharia incorporated
The title Sharia incorporated is meant to catch the essence of the twelve
stories that make up this book.6 In all Muslim countries of old sharia
has been regarded as a divine plan. To be applicable and practical, how-
ever, the principles and rules of sharia must be interpreted and laid
down. This has always raised vital questions, such as: Who will do this?
When and where? To what extent? How? And with what purpose? Will
there be a check on this power? What if people do not agree? Initially,
as indicated above, religious scholars performed this task, and often
with a considerable degree of autonomy from the rulers. That situation
has changed notably since the early nineteenth century, when the world
was gradually divided up into independent states.
States by definition consist of institutions that are supposed to have
the authority to make and enforce rules that govern their people. Their
internal and external sovereignty is a conditio sine qua non of their exis-
tence. Therefore, states can in principle not accept the existence of a
parallel structure with similar objectives, unless it can be incorporated
in the structures and laws of that state itself. This is exactly what we
have seen happening with sharia.
Intermediate stages of incorporation occurred as long as Muslim ter-
ritories formed part of colonial empires – or the Ottoman empire for
INTRODUCTION 27

that matter – during the nineteenth and early twentieth centuries. After
independence, which came to the Muslim states in three big waves, in
the 1920s, the 1940s, and the 1960s (see 14.2), the new political elites
had to decide how religion should be embodied in ideology, policy, and
law. Suddenly nationalist leaders and religious leaders, who had fought
side by side in the struggle for independence, became opponents. For
in all Muslim countries the new political elite of independent states
opted for supremacy of their own authority, their own decrees, their
own national laws. That was the new rule of the game, and it would not
change. All other normative systems and the traditional elite were to be
incorporated into the state’s legal, political, and administrative systems.
As such, state interference with sharia became broad and deep. Political
and legal marginalisation became the fate of both sharia as well as of
the class of scholar-jurists, who had developed and applied it.
As you will read in the following chapters, the modalities of incor-
poration differed hugely. The kings of Saudi Arabia, who have always
had to rely on support of the powerful religious elite of Wahhabi scho-
lars, proclaimed the Quran and the Sunna to be the country’s ‘constitu-
tion’, and as such denied that name to the ‘basic law’ that spells out the
organisation of that state. They gave the Wahhabi scholars important
positions and powerful voices within the state legal and political system.
To the contrary, the new elite under Atatürk removed sharia from the
Turkish legal system and kept tight control on religion through the
Diyanet, the state office for religious affairs. The King of Morocco be-
came ‘commander of the faithful’ and had a decisive voice in how
sharia-based law would be codified in family legislation. The govern-
ment of Egypt accepted in its constitution the principles of sharia to be
‘the source of legislation’, but ultimately decided not to adopt its sub-
stantive criminal law, and to modernise its family law. In Iran, the Shah
failed to recognise the political power of the scholars in his country;
upon the overthrow of his regime, Khomeini and his clerical associates
became the new political elite who could incorporate their views in state
policies and national law.
A consistent fact in all twelve national laws except for secular Turkey
is that sharia has been incorporated in the state system, often adapting
old interpretations of sharia to socio-economic changes. Although criti-
cised and contested by many different – if not all – sides, the incorpora-
tion of sharia by the state remains essentially a fact of life. About this
incorporation different political camps use different discourses to
further their goals. So it is not uncommon to see that certain acts of in-
corporation are regarded as islamisation of national law by one camp
and as annexation of sharia by the state by another (see 1.5).
28 JAN MICHIEL OTTO

1.3 Countries, concerns, and contested issues

Selecting twelve Muslim countries

In order to have a fair representation of the Muslim world, twelve
Muslim majority countries were selected. These twelve countries repre-
sent about two thirds of the world’s total Muslim population of 1.5 bil-
lion (see table 1 below). Most Muslims live in South and Southeast
Asia, and a considerable number live in Sub-Saharan Africa. This study
includes countries from those regions, thus avoiding the common ten-
dency of equating the Muslim world with the Arab world or the Middle
East. The selected countries include five countries from the Middle East
and North Africa (Egypt, Morocco, Saudi Arabia, Sudan, and Turkey),
three from Central and South Asia (Afghanistan, Iran, Pakistan), two
from Southeast Asia (Malaysia, Indonesia) and two from West Africa
(Mali and Nigeria). The politico-legal orientation of the governments of
these countries ranges from ‘puritan’ to ‘moderate’ to ‘secularist’. They
vary in size of their population, percentage of Muslims, their social and
economic development, their security situation, the degree of democra-
tisation, and their political stability.

Table 1 Twelve countries by number of inhabitants, % Muslims

Country Inhabitants (Mln.) Muslims (%)
Egypt 80,3 90
Morocco 33,8 99
Saudi Arabia 28,0 100
Sudan 41,0 70
Turkey 71,2 100
Afghanistan 31,9 99
Iran 70,0 98
Pakistan 174,0 97
Indonesia 234,7 86
Malaysia 24,8 60
Mali 12,6 90
Nigeria 140,0 50
Source: Bartleby: http://www.bartelby.com/151/indexes/countries/1.html, accessed March 2010

For the purposes of this study, a ‘Muslim country’ is understood to be a

country of which at least 55 per cent of the population is Muslim. The
international organisation of Muslim countries, the Organisation of the
Islamic Conference, has 57 member states. Of these, 41 or roughly
three quarters meet the above-mentioned definition. The fourth quarter
is made up of member states with Muslim minorities. For a long time
Malaysia was considered a borderline case at 55 per cent, but this num-
ber is now commonly estimated at 60 per cent. Strictly speaking,
INTRODUCTION 29

Nigeria, with a Muslim population of only about 50 per cent, does not
meet our definition of a Muslim country. However, the size and impor-
tance of the country – and the ramifications of the programmes of sha-
ria implementation recently undertaken in twelve of its Northern states
– led to the decision to include Nigeria in this study.

Main concerns, contested issues, common assumptions, and questions

There are four main concerns that have arisen as a consequence of the
islamisation of law:
(i) Supremacy of sharia
(ii) Legal status of women
(iii) Cruel corporal punishments
(iv) Violations of human rights

The book’s preface refers to the post 9/11 context in which these con-
cerns took centre stage, namely heated domestic and international de-
bates and strongly conflicting ideas on Islam, and especially sharia. To
Muslim ‘puritans’, embracing the sharia has always seemed the very
best thing that they themselves and their country could do. Muslim
‘moderates’ have held different views both of the role of sharia in state
and society and of how sharia should be interpreted; but being
Muslims, they have of course not been opposed to sharia as such. For
many people in the West, however, sharia started symbolising the main
foreign threat to their society. Among those alarmed, vocal academics,
politicians, and other opinion leaders embarked on a more confronta-
tional course.
For years the abovementioned concerns were constantly brought to
public attention, and the sensitised media were able to report almost
daily on worrisome issues from the Muslim world – topics ranging
from the prosecution of Baha’i in Egypt, to the rise of a ‘puritan’
Muslim party in Morocco, to honour killings in Turkey, to the hanging
of young homosexuals in Iran, to violent attacks in Pakistan, or to pub-
lic flogging in Aceh, Indonesia. Most of the headlines covered a specific
issue that seemed to fit well within one of the four main concerns men-
tioned above. For the purpose of systematic analysis, I have listed those
worrisome issues and added the alarmist assumptions that since a few
years have become so common in the West.

Supremacy of sharia
Within this first area of concern, the following issues can be
distinguished:
– Scope. This issue concerns the extent to which sharia influences a
national legal system as a whole. Many assume that in Muslim
30 JAN MICHIEL OTTO

countries sharia has pervaded all areas of public law and private
law.
– Territory. This issue involves the geographical spread of particular
sharia-based laws within a particular country. It is often assumed
that islamisation of the law in a specific district or province repre-
sents a wider change and spread throughout the whole country.
– Orientation. This issue touches on which of the competing views
and movements within the Muslim world is actually dominant,
especially in interpretations of sharia. Many assume that islamisa-
tion of law automatically implies the supremacy of ‘puritan’ views,
rather than ‘moderate’ perspectives.
– Basic norm. This begs the question as to whether the foundational
norm of a country’s legal system is the constitution itself – as op-
posed to ‘the sharia’ or ‘Islam’ – if particular provisions in the con-
stitution state that sharia is the main source of legislation or that
every law should comply with the tenets of Islam. It is often as-
sumed that an increasing number of constitutions have actually in-
troduced sharia as their highest or basic norm.
– Legal decision makers. This issue is about who ultimately decides the
rules in a legal system: religious scholars, who are experts of the
fiqh? Or the office holders and officials of the state, such as elected
parliamentarians, administrators and bureaucrats, and professional
judges trained in national, largely secular, law. Many assume that
sharia-based legal systems are theocracies that leave decisions in
law-making, interpretation, and adjudication to religious scholars
trained in Islamic religious institutions rather than to professional
policy-makers and jurists trained in secular universities.
Consequently, law enforcement in these systems is assumed to be
entrusted to a religion-based sharia police.
– Islamic codification. The issue is whether the existing law codes,
which were often based on Western models, have been thrown over-
board completely and replaced by fully Islamic codes. It is often as-
sumed that Western law codes have indeed been replaced by new
Islamic codes that are totally different.
– Islamic courts. The issue is whether states have established separate
Islamic judiciaries that have taken on the functions of secular state
courts. A popular assumption is that Islamic courts have indeed
been established or entrusted with increased powers.
– Islamic ruler. The issue involves the conception of an Islamic gov-
ernment as essentially authoritarian, without powerful elected par-
liaments or independent courts capable of maintaining a check on
the powers of the ruler or head of state. Many assume that heads of
the executive power possess vast legal authority derived from sharia,
and without any democratic constraints.
INTRODUCTION 31

Most of these eight issues are addressed in a country’s constitutional

law.

Legal status of women

Within this second area of concern we selected the following issues.
– Repudiation (casting off). The question is whether a man’s right, be-
stowed upon him by classical sharia, to repudiate his wife at will,
unilaterally, and without having to give any reason, is still valid. It
is often assumed that husbands can indeed divorce their wives arbi-
trarily by unilateral declaration without judicial or governmental
approval.
– Polygamy. This issue involves the right of a man, as provided for by
classical sharia, to conclude multiple marriages with up to four wi-
ves, as he likes and without the need for permission of the first wife
or of state authorities. Many assume that Muslim men can marry
up to four wives at will.
– Divorce. This issue concerns the possibilities for a woman to obtain
a divorce from a court, which according to classical sharia are very
limited. A common opinion is that a woman can hardly initiate a
divorce.
– Inheritance. The issue is that classical sharia provides that in the
case of inheritance a female heir inherits half of what a male heir
in a similar position would inherit. It is generally assumed that a
woman indeed inherits only half of the portion of a man.

These four issues are addressed in a country’s personal status, family,

and inheritance law.

Cruel corporal punishments

In this third area of concern, cruel corporal punishments, the most pro-
minent issues are threefold:
– Hadd offences. This issue involves the enactment of five, and in
some countries six, criminal provisions, based on classical sharia,
that prescribe heavy corporal punishments for specific crimes,
namely extramarital sex (zina), accusation of extramarital sex, rob-
bery, theft, consumption of alcohol, and, according to some schools
of thought, apostasy. Many assume such provisions have indeed
been enacted.
– Execution of corporal punishments. The issue is whether it is common
practice to actually administer corporal punishments, such as ston-
ing and amputation. It is readily assumed that these barbaric pun-
ishments are regularly executed throughout the Muslim world.
– Retribution and blood money. This issue involves the enactment of
criminal provisions, based on classical sharia, that entail the
32 JAN MICHIEL OTTO

retribution (qisas) of violent offences, such as murder, manslaugh-

ter, and assault, according to the principle of an ‘eye for an eye’;
and that retribution can also be bought off with ‘blood money’
(diyya). It is generally assumed that retaliation provisions are com-
mon and applied in practice.

These three issues are addressed in a country’s criminal law.

Violations of human rights

This fourth area of concern is different from those mentioned above in
that it departs from established normative standards – those of interna-
tional human rights treaties with universal objectives –, and refers to in-
stitutional mechanisms for identification and condemnation of viola-
tions. It includes the abovementioned concern with women’s legal sta-
tus by reference to the right to freedom from discrimination, enacted in
the international Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW). It also encompasses the
right to physical and mental integrity, which is guaranteed by the inter-
national Convention against Torture, and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). This area of concern is
thus broader and addresses all areas of law. For the purpose of this
study four issues are selected.
– Freedom from discrimination. The issue is that besides the discrimi-
nation of women in family and inheritance law, sharia-based law
also discriminates against several other groups, including homosex-
uals, non-Muslims, ‘deviant’ Muslims, adherents of other religions,
and atheists. The assumption is that such discriminatory provisions
have indeed been enacted, and as such make life for minority
groups difficult, or even impossible.
– Freedom of religion. The issue is the Islamic prohibition against leav-
ing one’s faith, which constitutes the crime of apostasy and is pun-
ishable under classical sharia law with heavy penalties, allegedly
even in some circumstances the death penalty. It is commonly as-
sumed that criminalisation of apostasy violates the freedom of reli-
gion for Muslims.
– Other prohibitions of and prescriptions for (un)Islamic behaviour. This
issue relates to the legal obligation to refer to Islam, its prescrip-
tions, and its symbols with deep respect only – for women to wear
the veil, for Muslims to refrain from music and dance, and for com-
pulsory education in Islamic scriptures. Many assume that such
provisions are often enacted and in practice encroach upon funda-
mental freedoms.
– Adherence to international human rights law. The issue is whether
Muslim countries have accessed, ratified, and implemented the
INTRODUCTION 33

major human rights treaties. It is often assumed that Muslim coun-

tries are not bound by such human rights treaties, and that they
have not established national human rights laws and institutions to
promote human rights domestically.

Economy and finance

Each of the twelve country studies in this book pays attention to most
of the abovementioned concerns and issues. In addition, they briefly
touch on sharia-based law in the sphere of economy and finance. Such
law, it is assumed, includes a ban on Islamic banks to charge interest.
Muslims must also pay special religious taxes to religious authorities,
symbolising their adherence to religious, rather than worldly, authori-
ties. As there is no direct connection with the violation of any human
right, this aspect has led to minimal, if any, Western concerns and criti-
cisms in the international debates on sharia and the rule of law. To the
contrary, Western banks, law firms, and governments have taken a keen
interest in Islamic banking.

Monitoring the islamisation of law

The abovementioned issues, totalling about twenty, constitute a useful
set for monitoring the impact of islamisation on national legal systems.
The selection of issues remains contestable, but by and large this set
may serve as a fair representation of the issues that have dominated do-
mestic and international debates about Islam and sharia. For the
authors of the country studies, each issue was an open question, to
which a verifiable answer had to be found. By aggregating the outcomes
of the twelve country studies, this research project has obtained a rich
set of data that enables a systematic comparative overview of legal provi-
sions. If we also take into account the historical and socio-political back-
ground of legal change on these issues, we may begin to grasp a better
understanding of the changing relationship between sharia and national
law in the Muslim world.
34 JAN MICHIEL OTTO

1.4 National legal systems, three delicate areas of law

Composition of national legal systems

At first glance most developing countries seem to have national legal
systems set up like that of any more developed country. The term ‘na-
tional legal system’ here refers to the whole body of legal rules, legal in-
stitutions, and legal processes. Developing countries have laws on any
conceivable topic, many of which closely resemble the laws of developed
countries. They also have much the same legal institutions, such as leg-
islatures at central and regional levels, ministries, executive agencies,
regional and local governments, supreme courts, appeal courts and
courts of first instance, ombudsman institutions, bar associations, law
faculties, legal aid institutions, etc. As most Muslim countries fall in
the category of developing countries, the main set up of their laws and
legal institutions is not different from that of any other country.
A closer look at the structure of legal systems of developing coun-
tries, however, reveals layers and fragmentation. Under the surface of
the more visible present-day national laws, we find layers of legal provi-
sions and ideologies deriving from, for example, the socialist, authori-
tarian era of the 1960s and 1970s, of colonial law, of religious law, and
of tribal customary law. The ‘geo-legal’ structure of a country, though, is
far from uniform. Customary law, for example, may apply in one place,
for one group, or for one particular topic, while elsewhere, for other
parties or a different topic, religious law or a national law may apply in-
stead of the customary law applied elsewhere. The layers of law differ
in territorial scope, in subject matter, and in institutional set-up.
Customary law is strong in rural areas, and often concerned with dis-
pute settlement, land law, inheritance law, and in many regions with fa-
mily law. Its key actors are traditional authorities, i.e. chiefs and tradi-
tional councils. In most Muslim countries Islamic law has a particularly
strong impact on family and inheritance law. Since colonial law used to
recognise the indigenous law as ‘law of the natives’, it gave rise to the
formal incorporation of customary and religious courts in the judiciary.
After independence, most young states wanted to assert full control
over the law of their subjects. Rather than maintaining the colonial le-
gacy they strived for unification of their legal systems. And indeed,
most developing countries have developed an impressive amount of na-
tional laws and established the relevant national legal institutions to im-
plement these laws. In comparison to the staggering numbers of mod-
ern national laws and regulations, the hard kernel of sharia rules over
which actual agreement exists, is rather miniscule. Yet, in the same way
as customary law, sharia has continued to play a role until today, as we
shall see in the country studies.
INTRODUCTION 35

The inheritance of colonial law also consists of codifications of civil

and criminal law, of jurisprudence, of laws of procedure, of types of ju-
dicial organisation, of legal styles and ways of legal reasoning, legal edu-
cation, and legal language adopted primarily from European models.
The colonial legal traditions have been carried on in developing coun-
tries by legal professions and scholarship. Former British colonies like
Nigeria, Pakistan, and Malaysia are now members of the
Commonwealth and still exchange legal information with other
Commonwealth countries. Former French colonies – e.g. Morocco and
Mali – are still oriented towards French legal development and legal in-
formation. Remarkably, French law has also been a major reference for
the codifications of Egypt, Iran, and Afghanistan, even though they
were never colonised. Egyptian law, especially its civil code, has had a
major impact throughout the Middle East, from the Gulf States to
Afghanistan. In contrast, Turkish civil law has largely been based on the
Swiss Civil Code. Thus, different ‘centers of radiation’, to use the con-
cept of Arminjon’s work on comparative law, have influenced the legal
systems of developing countries, including those which form part of
the Muslim world (Arminjon, Nolde & Wolf: 1952). Table 2 (see below)
provides some basic information about the centers of radiation influen-
cing the twelve legal systems under review, such as their constitution,
colonial legal tradition, school of Islamic jurisprudence, and the role of
customary law.
Today, domestic laws are increasingly influenced by public interna-
tional law. International organisations like the WTO, ILO, FAO, WHO,
IMF, World Bank, and UNDP provide advice on domestic legal drafts.
Financial aid is often made conditional upon the adoption of law re-
form. Human rights conventions and movements have also prompted
legal change. Competition between developing countries for foreign di-
rect investment has been another driving force behind emulating the
laws of ‘successful’ countries. While this enumeration of centres of ra-
diation is far from complete, it is clear that law-makers in developing
countries have been drawing from various domestic, foreign, interna-
tional, and transnational sources in their efforts to achieve national pol-
icy objectives.

Dysfunctions of legal systems

Whatever sources have been used in the formation of the laws of devel-
oping countries, and whether they include versions of sharia or not, it
is common knowledge that the actual operation of these legal systems
is marked by serious dysfunctions and shortcomings. Many legal sys-
tems simply fail to fulfil what is their main task, namely providing jus-
tice and legal certainty for all.
 36

Table 2 Twelve national legal systems with their legal traditions

Country Year of independence Year of present constitution/ Colony/ Legal tradition
last amendments Protectorate
Civil law/ Fiqh Scope of customary law
Common law tradition (1: small; 2: moderate; 3: vast)
Egypt 1922 19711 Ottoman, Civil law Hanafi 1
Britain
Morocco 1956 1996 France Civil law Maliki 2
Saudi Arabia 1932 -2 - - Hanbali 1
Sudan 1956 20053 Britain Civil/ Common law Hanafi 3
Turkey 1923 19824 - Civil -
Afghanistan 1919 2004 (Britain) Civil law Hanafi/Shia 3
Iran -5 1979 - Civil law Shia 2
Pakistan 1947 19736 Britain Common law Hanafi 3
Indonesia 1945 19457 Netherlands Civil law Shafi i 2
Malaysia 1957 19578 Britain Common law Shafi i 2
Mali 1960 1992 France Civil law Maliki 3
Nigeria 1960 1999 Britain Common law Maliki 3

1
Several important amendments were incorporated, notably in 1980, 2005 and 2007.
2
According to the Basic Ordinance (1992) the country’s divine sources of Islamic law form its constitution.
3
This is an Interim Constitution for a five years period, after which South Sudan will decide about its future.
4
The constitution was last amended in 2004
5
The history of independent Iran goes back thousands of years.
6
Many amendments were incorporated.
7
Since 1998 four important amendments have strengthened the rule of law considerably.
8
Since 1957 hundreds of amendments were enacted.
JAN MICHIEL OTTO
INTRODUCTION 37

This lack of justice and legal certainty can in part be attributed to le-
gal causes, such as the inadequacy of laws, restricted or faulty legal
mandates of institutions, and incomplete or vaguely construed legal
procedures. In addition, the dysfunctions are closely related to other,
non-legal problems of development and governance, such as insecurity,
poverty, illiteracy, authoritarianism, and corruption. Curing the pro-
blems of legal systems, therefore, presupposes progress in other areas.
The plurality, fragmentation, and overlapping of normative systems in
most developing countries add to the problematic nature of governance
and law. It would require much imagination to see how the general
Islamist recipe – ‘introduction of the sharia’ – can provide a practically
feasible way out of these complex problems. Meanwhile, the common
objective and direction to which most countries have subscribed is the
‘rule of law’. This has become an appealing concept because it reflects
the ideal of justice, which underlies all ideologies, religions, and nation-
states, and it also provides for an elaborate set of legal and institutional
standards with practical guidance.

Rule of law and human rights: authoritative standards?

Rule of law has become the most common international umbrella con-
cept prescribing normative standards for legal systems (Tamanaha
2004). International donor policies have made good governance and
the rule of law a focal point of their assistance to developing countries
(Carothers 2003). Meanwhile, there has been much debate about the
clash, as Huntington phrased it, between the ‘Western’ concept of the
rule of law and Islamic concepts of law, or more specifically about the
compatibility of sharia with human rights. But what does the rule of
law mean, how Western is this concept, and how does it relate to hu-
man rights? Bedner (2010) has concluded on the basis of an extensive
literature review that the rule of law concept can be best understood by
distinguishing two complementary sets of standards, namely procedural
and substantive standards, as well as a third set regarding what he calls
‘control mechanisms’.
The main procedural standards of the rule of law, as accepted in
authoritative documents and academic literature, are that (a) state poli-
cies must employ written laws – acts, ordinances, decisions – as major
instruments; (b) all state actions must be subject to law; (c) the law
must be clear and consistent in substance, accessible and predictable
for citizens, and general in its application; and (d) the substance of the
law and its effectuation must be influenced by citizen approval.
As for the main substantive standards of the rule of law, there is con-
sensus that all laws and their interpretations must be subject to (a) fun-
damental principles of justice; and (b) human rights and freedoms of
38 JAN MICHIEL OTTO

individuals, notably civil and political rights, social and economic rights,
and group rights.
In order to control compliance with these procedural and substantive
principles, the rule of law, as Bedner has proposed, also requires a third
set of elements to be in place, namely of control mechanisms: (a) the ex-
ecutive arm of the state must establish internal correction mechanisms on
unlawful administrative actions; (b) an independent judiciary, accessible
for every citizen, must be responsible for conflict resolution through inter-
pretation and application of the law; and (c) complementary quasi-judicial
institutions, such as an ombudsman, a national human rights-institution,
and various tribunals, must be in place to further ensure compliance with
the rule of law.
Over the last few decades the legal systems of the world have un-
doubtedly moved towards this rule of law. Yet, while country A’s legal
system may have succeeded in complying with most rule of law stan-
dards, it can still violate certain human rights. In the case of a Muslim
country, such violation may stem from its adherence to certain interpre-
tations of sharia. ‘Puritan’ regimes will as a matter of principle refuse
to formally review provisions of the divine sharia against secular legal
standards, but instead prescribe a reverse testing. ‘Moderate’ regimes
rather tend to accept the rule of law to be the dominant standard for
most practical purposes. In fact, both camps can agree about most of
the abovementioned elements of the rule of law, since there is no con-
flict with any sharia provision. Yet, certain human rights standards are
contested by puritans time and again as being ‘Western’ and ‘un-
Islamic’. From a human rights perspective, it is precisely the violation
of those standards that has given rise to the concerns and contested is-
sues listed above in 1.3. The recurring conflicts about those issues have
made certain parts of national law in the Muslim world rather thorny
and delicate, politically speaking. We find those delicate parts mostly in
constitutional, family, and criminal law. For this reason, the focus in
the legal sections of each country study is on these three areas of law
and their relationship to sharia in the country at hand.

1.5 Ideological-religious currents and discourses

The moderate-puritan dichotomy and beyond

Throughout the twentieth century different views were held across the
Muslim world about what should be the relationship between sharia
and national law. They ranged from Saudi Arabia’s preservation of clas-
sical sharia to Turkey’s strict secularism. Two discourses have fuelled
the interpretation and implementation of sharia more than any other,
namely those espoused by ‘puritans’ on the one hand, and by
INTRODUCTION 39

‘moderates’ on the other hand. Both believe, as Abou El Fadl explains,

‘in the oneness, completion and perfection of God’ and in his mercy
and compassion (Abou el Fadl 2007: 127-132). They also agree that God
should be approached by human beings ‘with submission, humility and
gratitude’. However, ‘puritans’ and ‘moderates’ differ dramatically in
their ideas about what God wants from human beings, how mankind
should use its ability to reason, and in particular about the role of sharia
in that relationship.
Moderate Muslims believe that in the moment of creation God has
entrusted humanity with a heavy responsibility, by providing human
beings with rationality and the ability to differentiate between right and
wrong. They should use this capacity to relentlessly strive to achieve
goodness, which includes justice, mercy, and compassion. Those are ac-
tually the real objectives of God’s law. As Abou El Fadl writes:

In moderate thought, God is too great to be embodied in a code

of law. The law helps Muslims in the quest for Godliness, but
Godliness cannot be equated to the law. […] the technicalities of
the law cannot be allowed to subvert the objectives of the law.
Therefore, if the application of the law produces injustice, suffer-
ing, and misery, this means that the law is not serving its pur-
poses […] then the law must be reinterpreted, suspended, or re-
constructed, depending on the law in question (ibid: 130-131).

In contrast, in the ‘puritan’ conception, good Muslims should be fearful

of God and study and obey his rules as strictly as possible. Whatever is
in the sacred sharia is thought to reflect God’s mercy and compassion.
So, what they need is a sharia which prescribes exact rules to which
they can submit by strict compliance. Through this only will they obtain
salvation:

Through meticulous obedience, Muslims will avoid punishment

in the Hereafter and will enter Heaven. […] By performing acts
of submission, Muslims earn good points, and by disobeying
God they earn sins (or bad points). In the Final Day, God will to-
tal up the good points and the sins. Heaven or Hell is deter-
mined by the balance of points […] (ibid: 127).

In the ‘puritan’ paradigm there are no grounds for legal reforms that
take contemporary socio-economic changes into account. In the ‘puri-
tan’ view:

The actual social impact that the law might have upon people is
considered irrelevant. Although people might feel that the law is
40 JAN MICHIEL OTTO

harsh or that its application results in social suffering, this per-

ception is considered delusional (ibid: 128-129).

While the opposition between ‘moderates’ and ‘puritans’ has been a

constant throughout the history of Islam, contemporary politics and so-
cieties feature an ideological-religious spectrum which is in fact broader
and more complex than this dichotomy. Orientations of strategic
Islamic movements and groups range from nationalist, secularist, hu-
man rights, feminist, liberal, social services, clean government, moder-
nist, and democratic, to conservative, traditionalist, orthodox, pan-isla-
mist, radical, and ultimately, revolutionary, militant, and terrorist (cf.
Fuller 2003; Hallaq 2003). In practice, these orientations often overlap
and the meanings and connotations of the labels often differ. Political
positioning of such movements on religious issues often intersects with
other issues of domestic and foreign policy. Many of these movements
and groups are quite pragmatic and versatile, as power configurations
surrounding them are in constant flux and choices must be made be-
tween competing political discourses.

Major discourses about incorporation of sharia

Different political actors have voiced a variety of discourses on the in-
corporation of sharia. Governments have done their best to present the
incorporation as a deliberate policy that both demonstrates their respect
for religious beliefs among the people and provides them with state-
guaranteed legal certainty. According to this discourse the government
has opted for an incorporation that contributes to nation-building and
socio-economic progress, and is thus beneficial. While certain groups
may disagree with the outcome, the government has acted as an arbitra-
tor who, standing above the parties, has come up with the best possible
and most balanced solution. Often governments have ensured them-
selves of the support of high-ranking clerics, who have gone along with
this state discourse about the beneficial incorporation of sharia.
In contrast, Islamic scholars, who have not posited themselves as an
extension of the government, have presented the incorporation of sharia
as the political elite’s erroneous appropriation of the power to interpret
God’s will, to ascertain the rules of sharia, and to administer justice ac-
cordingly. This power used to be theirs. So, for them, the incorporation
of sharia constitutes a marginalisation of their profession and the dis-
tortion of a good thing that has now fallen into the wrong hands.
Academic expositions about the transformations of sharia often concur
with this narrative. Hallaq (2009) describes the fate of sharia as the re-
sult of a lost battle. He points to the fact that the political elites of the
independent Muslim countries have interfered much more broadly and
INTRODUCTION 41

deeper in religion in their societies than their colonial predecessors ever

dared. Feldman (2008) similarly depicts the scholars as the good ex-
perts of justice who used to exert a necessary and beneficial influence
on authoritarian rulers, until modern bureaucratic regimes chose to
sideline them and made a mess of what used to be a capable religious
administration of justice.
The disappointment of the scholars about their marginalisation by
the state is not shared by the ‘puritans’. In their discourse, the incor-
poration of sharia is the product of an essentially impious, amoral, and
opportunistic governance. They contend that rulers and scholars have
both failed to comply with God’s law; they have indulged in luxury and
corruption, neglected their real duties, and plunged their country into
misery. Incorporation of sharia, as it was conducted by such unfaithful
elites – lackeys of the West! – must be brought to an end so that revolu-
tionary Islamist forces can take over and promulgate new laws in full
accordance with God’s will.
While these are perhaps three of the leading discourses about incor-
poration of sharia in the Muslim world, the first two make themselves
seldom heard in the West, while the third has got through only to some
extent. In Europe and North America another discourse about this in-
corporation dominates all others, namely that which equates incorpora-
tion of sharia with islamisation of law, deterioration of human rights,
and a threat to both world peace and Western civilisation.

1.6 Towards a realistic history of sharia and national law

Selecting turning points and historical periods

The interaction between sharia and national legal systems has a long his-
tory, which has been depicted in the academic literature in different ways.
While Hallaq and Feldman have denounced the displacement of sharia
in modernising states, others such as Huntington and Marshall have em-
phasised the islamisation – if not rapid then ‘creeping’ – or ‘sharia-
isation’ of national law. The country studies in this book attempt a ba-
lanced interpretation of that history. Normally the history of each country
would deserve its own periodisation. However, for the purpose of com-
parison this study has used a common periodisation for all country
studies.
We have used the year 1800, the beginning of the nineteenth century,
as a starting point because it marks the start of major modernisations
in law and governance, both in the Ottoman Empire and Egypt, as well
as in European colonies in Asia. Since Napoleon’s 1798 journey to
Egypt, the Middle East was suddenly confronted with European
42 JAN MICHIEL OTTO

progress and modernity. In this period Islamic modernism emerged

and Muslim scholars ‘reopened the gate of free interpretation’.
The next turning point, 1920, was chosen since it marks the end of
the first World War, the subsequent end of the Ottoman Empire, and
the rise to independence of most Muslim countries in the Middle East.
What followed was a period of nationalism, state-building, and, espe-
cially after 1945, a rapid succession of ideologies and foreign influences.
Sharia as a normative system continuously had to face new political
contexts, from modernisation and liberalism during the interbellum to
socialism and authoritarianism in the 1950s and 1960s. Ambitious le-
gal policies of political elites were often informed by an urgent desire
for unification, modernisation, and secularisation and aimed for a
wholesale transformation of societies. The governments, however,
lacked the capacity to implement, and social resistance to the transfor-
mations turned out to be considerable (Allott 1980).
We have chosen 1965 as the starting point for the decline of this over-
ambitious nationalist, and often socialist and secular-oriented, rule in a
major part of the Muslim world. The heroic age of the first generation
of national leaders like Nasser and Sukarno was coming to an end.
African decolonisation was largely completed, and many of the young
Muslim countries in Asia and Africa went searching for their own ideol-
ogies and identities. Disappointed by broken promises of development
and the failures of governments, several countries experienced ideologi-
cal and power vacuums, which in countries, such as Iran, Pakistan, and
Sudan were filled by coups that brought islamisation of law and
governance.
As noted in the book’s preface, developments during the twenty-five
years after 1985 have been the subject of heated debates and specula-
tions about the islamisation of law. An important objective of the histor-
ical part of this study is to provide a balanced assessment of this pro-
cess in recent decades.
The histories of national legal systems in the chapters ahead start
mainly from around 1800. About the long period before 1800, the stu-
dies had to be brief. Yet, the preceding millennium was important as an
era that saw the growth and flourishing of sharia, as well as emerging
tensions with the laws of the state. Therefore, this section ends with a
brief introduction to that early period.

The millennium of sharia as the living law (c. 800-c. 1800)

In theory the legal system of the early, burgeoning Muslim state knew
only one lawgiver (God), one prevailing legal system (sharia), and one
type of judge (the qadi, who formed the single-headed sharia court).
Since 750, however, a parallel legal system under the Abbassid Caliph
INTRODUCTION 43

developed, serving practical and administrative needs (Esposito 1998:

22; Vikør 2005: 190). As rulers do, the Caliph made rules, issued de-
crees, and passed judgments himself. Formally, these decisions served
to carry out his main task, namely the preservation of sharia. The justi-
fication under sharia was that rulers were granted a discretionary
power, or siyasa. This power was seen as permissible – acknowledged
by the ulama – in so far as it did not conflict with the sharia (Esposito
1998: 23; Vikør 2005: 192).
A part of this parallel system under the Caliph, a sort of professional
administration of justice, was set up with boards of grievances or maza-
lim courts. Initially, these were only intended for complaints against
high government officials or judges, but gradually the Caliph broadened
the jurisdiction of the mazalim courts to include criminal, administra-
tive, and trade cases. In this way, the competence of the sharia courts
was reduced to family and inheritance law, religious endowments, and
in certain regions, perhaps also contract law. The mazalim courts were
not the only type of non-sharia courts that existed from the early days of
the caliphate. More important for most people were the police courts
(shurta courts), which operated as a separate system based on police in-
vestigations and which were ‘unhampered’ by the strict rules of evi-
dence prescribed by the sharia (Vikør 2005: 190-195). Thus, a dual sys-
tem of state law and religious law operated, theoretically unified by the
principle of siyasa. As most country chapters will reveal, customary law
prevailed in most rural areas, as a third important element.
From 1500, after centuries of stagnation, several Muslim princedoms
developed into expansive empires with considerable military power: the
Ottoman Empire in the Middle East and Southeast Europe, the Mughal
Empire on the Indian subcontinent, and the Shiite Safavid Empire in
Persia. As cultural capitals, Istanbul, Delhi, and Isfahan became worthy
successors to the Baghdad of the Abbasids (Esposito 1998: 26). In addi-
tion, the Ottoman sultan bore the religious title of Caliph. Islam pro-
vided the legitimation, the political ideology, and the law for the govern-
ing of the three large empires. Sharia was the official prevailing law in
all three. The actual scope of sharia courts, however, was usually limited
to family law and inheritance law. The sultans continued to issue their
own decrees and maintained the mazalim courts. Sometimes their prin-
cely edicts differed from classical sharia. In the fifteenth century, the
Ottoman sultan decreed that the strict hadd punishments were not to
be applied under his rule (see 6.1). In the three empires, the sultans
were virtually absolute rulers and were supported by vassals, civil ser-
vants, and military forces.
In opposition to this absolutist rule, the ulama tried to maintain their
own basis of power. In the Ottoman and Mughal empires this was done
through an implicit alliance with the ruler. In the Safavid Empire, the
44 JAN MICHIEL OTTO

ulama maintained a more independent position, in accord with Shiite

doctrine. Certain ulama were active as judges, as state advisors, and for
the enforcement of the law. Above them, in addition to a chief judge,
was now also a chief religious functionary, known as the chief mufti, or
the Shaykh al-Islam (in the Ottoman Empire) or the Sadr al-sudir (in
Persia and South Asia). According to Hallaq (2003: 1710), the system of
Islamic religious scholars functioned as a counterweight to the state
and government, and ‘it did so with remarkable independence and suc-
cess.’ However, ‘the judge[s] who [were] appointed and paid by the state’
were soon suspected of being ‘agents of corrupt politics’. Other reli-
gious scholars or ulama were responsible for an expanded and often
flourishing educational system. Finally, they controlled a large number
of social services. The ulama often used the income from land grants
and religious endowments (waqf) for mosques, hospitals, schools, and
other public services. In this way, they acquired much authority among
the people, which strengthened their position vis-à-vis the secular
authority. Thus, Islam and sharia functioned for about a thousand years
in the Muslim world as a system of religion, governance, and law. As
Abou El Fadl writes:

The Shari’a […] functioned like the symbolic glue that held the
diverse Muslim nation together, despite its many different ethni-
cities, nationalities, and political entities. […] [T]he Shari’a re-
mained the transcendent symbol of unity, and the jurists [scho-
lars] were the Shari’a’s guardians [… and] stayed above the petty
political and military conflicts and […] provided the quintessen-
tial source of religious authority in the Muslim world (Abou El
Fadl 2007: 34).

Although practice was often different from the sacred doctrine, Islam,
nevertheless, furnished the people with a cohesive element and histori-
cal continuity. Rule according to sharia was the common element, as it
was also the minimum requirement for an Islamic government. The re-
cognition by the ruler that sharia was the official law preserved the
unity of the community and its Islamic character. Under the great sulta-
nates, Islamic law was thus ‘the criterion for the legitimacy of an
Islamic state’ (Esposito 1998: 31).

1.7 A voyage around the Muslim world

After this introduction it is now time to proceed to the country chapters,

embarking on our voyage around the Muslim world, which starts in
Egypt (see chapter 2), the ancient kingdom on the border of the two
continents Africa and Asia. Egypt, the largest country in the Arab world,
INTRODUCTION 45

has played a central role in the development of law in the Middle East.
During the nineteenth century, Egypt became one of the prime leaders
of modernisation in the region. Later, the country was to become the
centre of Islamic modernism inspired by Muhammad Abduh. The
country was also home to the great legal scholar Sanhuri, who managed
to draft a civil code during the interbellum on the basis of French law,
Egyptian case law, and sharia, which was to be introduced in over a doz-
en countries in the region. In 1980 a constitutional amendment de-
clared the principles of sharia to be the main source of legislation, but,
as we will see, this would not stop the liberalisation of marriage law.
From Egypt, we will move to the very Western corner of the Muslim
world, Morocco (see chapter 3). When the country became a French
Protectorate in 1912, the sultan agreed to seek French assistance for the
development of its legal system. Soon after independence in 1956,
Morocco introduced a codification of sharia, the Personal Status Code
of 1958. Having been amended several times, it now contains one of
the most progressive family laws in the Islamic world. During this pro-
cess, the king, who according to the constitution is ‘Commander of the
Faithful’, played an important role.
Like many Muslims do each year, we now set course for Saudi Arabia
(see chapter 4), where we find a different set of legal rules altogether.
Protecting the Holy Places where Islam originates from and hosting the
annual pilgrimage, Saudi Arabia, led by the ruling dynasty of the
Sauds, takes centre stage in the Muslim world. Sharia is its national
law, and law reform has been slower and more cautious than in any
other country. For decades, the powerful clan of the Wahhabi, which
sits in the country’s most powerful religious seats, has promoted mis-
sionaries all over the world to present the Wahhabite puritan model as
the only right one. Religious missions in Asia, Europe and Africa were
funded by profits made from the rich oil reserves.
Next we cross back over the Red Sea to Africa, to the Sudan (see
chapter 5). This state has been devastated by long lasting civil wars aris-
ing from the conflicts between the Islamic North, the non-Islamic
South, and later with rebel groups in Darfur. When in 1983 general
Numeiri had not succeeded in lifting his poor country into a higher
stage of socio-economic development, he announced a grand scale isla-
misation of the law. Since then, the Sudan has tried to ‘cleanse’ its legal
system of all traces of liberal British and Egyptian-French roots.
However, as part of the peace negotiations with the South in 1998 and
2005, relatively liberal constitutions were put back in place.
From the Sudan we continue into Turkey (see chapter 6), the country
that is considered by some as the bridge between Europe and the
Middle East – among the most populous countries in the Middle East,
like Egypt and Iran, and a country that has been steering its own
46 JAN MICHIEL OTTO

ideological course for almost a century. Atatürk turned Turkey into a se-
cular nation after the end of the First World War, and to date it con-
tinues to be so. However, the rise of religious parties, such as the AK
led by Erdogan, has repeatedly led to tensions involving the army, the
police, and the judiciary. Perceived as symbol of religiosity, the issue of
the wearing of the veil has been the centre of tense political and legal
debate, perhaps more so than in any other country in the world.
Our journey continues into Afghanistan (see chapter 7) in Central
Asia. King Amanullah tried to reform this country at the same time
when and in the same way as Atatürk was busy reforming Turkey. Yet,
nation building in Afghanistan turned out to be a slow and difficult pro-
cess. Since the late 1970s, a large part of the country became the battle
field for tribal warlords, Russian troops, and Islamic resistance fighters.
The 1990s saw how the resistance forces were joined and overruled by
a new militant movement, established with support from the United
States, Saudi Arabia, and Pakistan: the Taliban. During their authoritar-
ian rule, the Taliban gave Osama bin Laden the opportunity to prepare
the infamous Twin Towers attack in 2001. After the subsequent
American invasion, the Taliban were expelled and foreign troops were
deployed to support the government in Kabul in hopes of maintaining
the rule of law in this poor and fragmented country.
If one crosses the border into Iran (see chapter 8), one arrives in a re-
latively organised and developed country. It is here that the Shah
launched his greatest modernisation policy, which only partially suc-
ceeded. In response to severe political repression, the Iranian people
supported the 1979 Islamic Revolution en masse. More than thirty years
after the Revolution, it may seem that the strong islamisation of the le-
gal system has barely, if at all, been toned down. Iran is the only coun-
try of our dozen where religious scholars have seized executive and ju-
dicial power and oversee the governance of the state. However, over the
last decades, social, intellectual and political movements have vigorously
advocated legal change – with some limited successes – and reformers
have gained an increasing amount of support. During the 2009 election
campaigns, opposition against the present regime and calls for reform
became massive.
Pakistan (see chapter 9), a country stricken by poverty and ethnic
conflict, had a troublesome start and until the present day is frequently
uprooted by violence. As is the case in Afghanistan, customary law is
still dominant in the rural areas. Military and civil presidents have up-
held a fairly authoritarian regime. In 1979, General Zia ul-Haq over-
threw the democratically elected government of Ali Bhutto in a coup
d’état and tried to legitimise his rule by introducing a strict adherence
to Islamic law. Large nationalist parties, as well as the judiciary, which
follows the British legal tradition, exert a moderating influence on the
INTRODUCTION 47

extensive power of the presidents as well as on the islamisation of the

national law.
Just a few hours by plane one reaches Southeast Asia, an area where
Islam has blended in with local custom (adat) and the old traditions of
Hinduism and Buddhism. Indonesia (see chapter 10) is the largest
Muslim country in the world, an enormous archipelago of thousands of
islands, and home to hundreds of ethnic groups. While Dutch colonial
rule recognised the country’s elaborate systems of customary adat law,
since independence in 1945 the emphasis has been on national law.
Islamic law has remained in a secondary position. Consequently, the
word Islam does not appear in Indonesia’s constitution. But this coun-
try, too, has been subject to efforts of islamisation. Yet, the consecutive
governments – democratically elected since 1998 – have continued to
steer a course with national unity as their overriding objective.
Islamisation of law has so far been quite limited, the remote province
of Aceh, however, being an exception.
It takes only a short trip overseas to Malaysia (see chapter 11), where
almost the same language is spoken. This country provides a home to
both the Islamic Malay population as well as a large minority group of
Chinese, has, like other Muslim countries, seen a rise of Islamist move-
ments in the last decade. These movements strongly contrast the older,
more tolerant and moderate form of Islam that has been the mainstay
of Malaysia’s history. The judiciary, operating in a British legal tradition,
has had to play a crucial role in dissolving conflicts that arise out of the
more assertive stance of ‘puritan’ Muslim movements.
From one region in the ‘periphery of the Muslim world’ to another:
Sub-Saharan Africa. In poverty-stricken Mali (see chapter 12), an ex-
French colony, the state is fairly secular by nature, and the predomi-
nantly rural population adheres mostly to customary law. Yet, here too,
Islamic traditions and Muslim missionaries have left their mark on po-
litico-legal developments. Mali, relying on development aid, is con-
fronted with Western donors who wish to improve the position of wo-
men, and with Islamic donors such as Saudi Arabia who wish to in-
crease the influence of classical sharia. To date, the government has
been able to preserve stability and steer a course of compromise be-
tween the conflicting forces.
The final stage of our journey takes us to Nigeria (see chapter 13), the
most populous country in Africa, which is divided into an Islamic
North and a Christian South. This federal state, rich in oil, has experi-
enced many violent conflicts, both between tribal as well as between re-
ligious groups. Military coups brought the country under army rule for
long periods. Only since 1999 civilian rule has been reinstated. The
year 2000 marked the significant event of eleven provinces in the
48 JAN MICHIEL OTTO

North promulgating Islamic criminal law. Ten years later this book re-
constructs the events and takes stock of the results.

After this cursory voyage you have reached the end of the introductory
chapter. Hopefully you are now prepared to immerse yourself into the
fascinating individual country chapters, and to gain, while reading, an
ever more complete overview and deeper insight into how sharia has
been incorporated in national legal systems throughout the Muslim
world.

Note to Preface

1 Berger 2006; Otto 2006; Otto, Dekker & Van Soest-Zuurdeeg 2006.

Notes to Chapter 1

1 In this chapter in particular and in many parts of the book the term ‘sharia’ is used
instead of ‘Islamic law’. For the purpose of this study it was found preferable to dif-
ferentiate between sharia and law. The term sharia then denotes divine rules that, ac-
cording to the religion of Islam, emanate from God. The term law, as commonly
used, refers to man-made rules and norms, issued by and enforceable by state insti-
tutions. Of course we can also define the term law more broadly to encompass sys-
tems of religious law and religious authorities, but in the context of this study that
could also easily create unnecessary confusion. Readers can especially be confused
when in certain literature about sharia (translated from Arabic into English), authors
refer to ‘sharia’ by using the term ‘the law’, as in the phrase for example ‘[t]he status
of women according to the law is equitable to men’.
2 Except for Nigeria, see 1.3.
3 These specialisations include legal history, sociology of law, legal anthropology, law
and development studies, law and economics, comparative law of developing coun-
tries, court studies, and the legal dimensions of political and governance studies.
4 This closure of the gate has been an established theory but some authors have con-
tested it, a.o. Hallaq (2009).
5 Dispute resolution according to classical fiqh requires parties and/or the judge to con-
sult a mufti, whose fatwa will then be applied to the case by the judge. Today, this sys-
tem is still in use in Saudi Arabia.
6 The term ‘incorporated’ is merely introduced in order to point at the historical pro-
cess, in which states have appropriated the legal function of sharia. The term does
not have the connotation of a business entreprise or a multinational company and
should not be understood as such.
INTRODUCTION 49

Bibliography

Abou El-Fadl, K. (2007), The Great Theft. Wrestling Islam from the Extremists. New York:
HarperCollins Publishers.
Al-Azmeh, A. (1993), Islams and modernities. London: Verso, Phronesis.
Allott, A. (1980), The limits of law. London: Butterworth.
Arminjon, P., B. Nolde, & M. Wolff (1952), Traité de droit comparé. Paris: Librairie générale
de droit et de jurisprudence.
Bedner, A. (2010, forthcoming), ‘An Elementary Approach to the Rule of Law’, Hague
Journal on the Rule of Law.
Berger, M.S. (2006), Klassieke sharia en vernieuwing. Amsterdam: Amsterdam University
Press.
Buruma, I. (2007), Murder in Amsterdam, The Death of Theo van Gogh and the Limits of
Tolerance, London: Atlantic Books.
Carothers, T. (2006), Promoting the rule of law abroad: in search of knowledge. Washington
D.C.: Carnegie Endowment for International Peace.
Coulson, N.J. (1964), A history of Islamic law. Edinburgh: Edinburgh University Press.
Esposito, J.L. (1998), Islam and politics. Syracuse: Syracuse University Press.
Feldman, N. (2008), The Fall and rise of the Islamic state. Princeton: Princeton University
Press.
Fuller, G.F. (2003), The future of political Islam. New York: Palgrave Macmillan.
Hallaq, W.B. (2003), ‘Muslim rage and Islamic law’, Hastings Law Journal 54(6): 1705-1719.
Hallaq, W.B. (2009), Sharia. Theory, Practice, Transformations. Cambridge: Cambridge
University Press.
Hirsch, S. (2006), ‘Islamic Law and Society Post-9/11’, Annual Review of Law & Social
Science Vol.2, December 2006: 165-186.
Huntington, S.P. (1998), The clash of civilizations and the remaking of world order. New York:
Touchstone.
Ibn Warraq (1995), Why I am not a Muslim, see http://www.markhumphreys.com/islam.
html, accessed 2 May 2010.
Lewis, B. (2002), What Went Wrong? Western Impact and Middle Eastern Response, Oxford:
Oxford University Press.
Lewis, B. (2003), The Crisis of Islam. Holy War and Unholy Terror, London: Phoenix.
Marshall, P. (2005), Radical Islam’s Rules. The Worldwide Spread of Extreme Shari’a Law.
Freedom House’s Center for Religious Freedom. Oxford: Rowman & Littlefield
Publishers, Inc.
Otto, J.M. (2006), Nationaal recht en sharia. Rechtssystemen in moslimlanden tussen traditie, poli-
tiek en rechtsstaat. Amsterdam: Amsterdam University Press.
Otto, J.M., A.J. Dekker & L.J. van Soest-Zuurdeeg (eds.) (2006), Sharia en nationaal recht in
twaalf moslimlanden. Amsterdam: Amsterdam University Press.
Peters, R. (1997), ‘De hedendaagse toepassing van het islamitisch recht’, in H. Driessen
(ed.), In het huis van de islam: geografie, geschiedenis, geloofsleer, cultuur, economie, politiek,
259-277. Nijmegen: SUN.
Schacht, J. (1964), An introduction to Islamic law. Oxford: Clarendon.
Tamanaha, B.Z. (2004), On the rule of law: History, politics, theory. Cambridge: Cambridge
University Press.
Vikør, K.S. (2005), Between God and the Sultan: A history of Islamic Law. London: Hurst.
2 Sharia and national law in
Egypt

Maurits Berger and Nadia Sonneveld1

Abstract

An example to many an Arab state, Egypt’s contemporary legal

system is itself reflective of various foreign, mostly European, in-
fluences. Focussing on the relationship between sharia and na-
tional law in Egypt, this chapter will show the pervasiveness of
this foreign influence and its particular influence during colonial
times, when the sharia and the sharia courts were relegated to
the realm of personal status law, and under Nasser, when the
sharia courts were abolished altogether in the interest of his natio-
nalisation and unification programmes. Even the subsequent up-
surge in Islamic religiosity, resulting in a public return to religion
from the 1970s onward and the constitutional amendments of
1971 and 1980 declaring the principles of sharia to be the main
source of Egyptian legislation, did not lead to a significant return
of sharia in Egypt’s legal system. In fact, successive reforms of
personal status law demonstrate the considerable pressure the
government feels to satisfy the needs of the international commu-
nity. Making use of independent interpretation of the sources of
the sharia (ijtihad), Egypt has thus far succeeded in introducing
reform that is in line with the international agreements it has
signed, but that could also be presented as Islamic at home. This
duality will be explored in two separate sections of this chapter –
an historical overview of developments pre-1920 until present and
an analysis and presentation of contemporary Egyptian law.
Table of contents
2.1 The period until 1920. European influence and sharia
reform 53
Legislative reforms 54
Modernising sharia 55
2.2 The period from 1920 until 1965. The ousting of the
Egyptian royalty and the British – towards formation of
a socialist republic 56
Codification of Islamic personal status law 57
The 1952 revolution 59
2.3 The period from 1965 until 1985. Islamisation and
the Infitah 61
Sharia in the constitution 62
Democracy and the rule of law 64
2.4 The period from 1985 until the present. Continuation of
Islamisation and modernisation 65
The 1980s 65
The 1990s 67
The new millennium 70
2.5 Constitutional law 72
2.6 Personal status and family law 74
Marriage 74
Divorce 75
Consequences of divorce 77
Inheritance 77
2.7 Criminal law 78
2.8 Other legal areas, especially economic law 79
2.9 International treaty obligations and human rights 80
2.10 Conclusion 81

Notes 84
Bibliography 85
SHARIA AND NATIONAL LAW IN EGYPT 53

The advent of Islam in the early seventh century A.D. was followed by a
period of rapid expansion that brought Islam and the Arabic language to
Egypt. Egypt’s strategic location between North Africa and Southwest Asia is
exemplified by the completion of the Suez Canal in 1869, turning the
country into an important hub of world commerce and geopolitical
importance. Egypt gained its independence from Britain in 1922 and became
the Arab Republic of Egypt in 1952. With a current population of
approximately eighty million people, Egypt is the most populous country in
the Middle East. The overriding majority – approximately 90 per cent – are
Sunni Muslim. The remaining 10 per cent of the population is predominately
Coptic Christian, but other Christian denominations are also represented.
The Jewish community emigrated during the late 1950s. Arabic is the official
language in Egypt. Most legislation has been based on European and, later,
on Anglo-Saxon legal systems. Since 1980, the ‘principles of sharia’ are the
primary source of legislation.

(Source: Bartleby 2010)

2.1 The period until 1920

European influence and sharia reform

During the period from 640 until 642, Egypt – then part of the
Byzantine Empire – was conquered by Islamic armies coming from the
Arabian Peninsula. Egypt’s population was primarily Coptic, but over
the course of the next two centuries most Copts converted to Islam.
Egypt has played a central role in Islam’s history, not least because of
its Islamic educational institution, al-Azhar. Founded in 972 A.D. in
what is now the medieval quarter of Cairo, al-Azhar quickly became re-
puted and developed into one of the main centres of Islamic learning
in the world. Not surprisingly, the Grand Sheikhs of al-Azhar and its re-
ligious scholars (‘ulama’) have often influenced Egyptian politics. In
turn, the Egyptian authorities have attempted to exert influence over the
university throughout the centuries and with varying success (see 2.2).
From 1517 onwards, Egypt became a semi-autonomous province of
the Ottoman Empire. In response to Napoleon’s brief occupation of the
country (1798-1801), the sultan of the Ottoman Empire sent a military
force under leadership of Muhammad Ali to Egypt to end the French
occupation. When the French troops left the country in 1801,
Muhammad Ali (1769-1848) declared himself Egypt’s legitimate and
rightful leader and was able to secure the country an even more autono-
mous position within the Ottoman Empire. Muhammed Ali established
a monarchical dynasty that would remain in power until its overthrow
54 MAURITS BERGER AND NADIA SONNEVELD

in 1952. Inspired by the French, he implemented a rigorous program of

modernisation, which drew heavily on European, particularly French,
expertise and ideas; the military, educational system, laws and legal in-
stitutions, and the state apparatus (infrastructure and administration)
were reformed according to European models.
With the opening of the Suez Canal in 1869, Egypt suddenly became
of great geopolitical strategic importance. This was in particular the case
for Great Britain whose lifeline to British India went through that canal.
In the years to come, Egypt became increasingly afflicted by tremen-
dous debt and financial mismanagement. In order to protect their in-
vestments in Egypt, several European countries, led by Great Britain,
decided in 1882 to place Egypt under ‘guardianship’, which in practice
meant de facto British colonial rule. De jure, Egypt remained part of the
Ottoman Empire, a situation that continued until 1914 when the
Ottoman Empire entered the war on the side of the Germans. As one
of the allied countries, Great Britain took the opportunity that year to
declare Egypt a British protectorate, a status that lasted until 1922.

Legislative reforms
In the nineteenth century, multiple forms of legislation and jurisdiction
operated alongside each other. Muslims, Christians, and Jews main-
tained their own religious family laws and family courts. Courts with
jurisdiction over Muslims – the sharia courts – also applied (uncodified)
Islamic jurisprudence to other cases brought to the attention of these
courts (e.g. contractual and land disputes). In addition, there were na-
tional courts, which applied governmental legislation as its primary
source of legal authority. When located in rural areas, these courts often
applied customary law as well. Finally, cases involving disputes between
foreigners and Egyptians were referred to the so-called Mixed Courts;
disputes between foreigners were referred to their respective consulates
(based on a certain degree of legal immunity as part of the
Capitulations Treaties concluded in the previous centuries between the
Ottoman Empire and European states).
Starting in the 1880s, the Egyptian legal system went through a pro-
cess of unification (Brown 1997; Cannon 1988), and in 1883, national
laws were introduced in the fields of civil, commercial, criminal, and
procedural law. These laws were adopted from European models, espe-
cially the French, German and Italian ones, and contained very little, if
any, reference to Islamic law (Najjar 1992). New national courts were
created to implement these codes, but the jurisdiction of the Muslim,
Christian, and Jewish family courts remained untouched (until 1955), as
was the case for the Mixed Courts (until 1949).
SHARIA AND NATIONAL LAW IN EGYPT 55

The process of legal and social modernisation at the end of the nine-
teenth century was paralleled by reforms in Islamic thought, in particu-
lar regarding the scope of sharia. The movement that initiated these re-
forms became known as al-nahda. Literally translating as ‘awakening’,
the al-nahda is a modernisation and reform movement that originated
in Egypt in the latter half of the nineteenth century and spread to other
Arab countries. It found its expression in the adaptation of Western
codes and later in the codification of rules of sharia concerning the fa-
mily and inheritance (Najjar 1992: 62). Rifa‘a Bey al-Tahtawi (1801-
1873), scholar of the mentioned al-Azhar, played an important role in
this process. He was one of a first group of Egyptians who were sent by
the government to study in Europe. Upon return, he became an impor-
tant religious scholar (‘alim) and eventually the ideologue behind the re-
forms Muhammad Ali wanted to introduce. As such, one of the key
problems al-Tahtawi found himself faced with was the question of how
Egypt could be modernised without losing its Islamic character.
According to al-Tahtawi, the solution lay in adapting the sharia to ‘mod-
ern times’ through using a method of selection (takhayyur), which, in
certain situations, allowed Muslims to follow legal interpretations of
Sunni schools of jurisprudence other than their own (Esposito 1982:
50; Öhrnberg 1995: 523-524).2

Modernising sharia
A later pioneer in the area of modernisation of the sharia was another
Azharite, Muhammad Abduh (1849-1905), who wielded great influence
in his capacities as a religious scholar (‘alim), state mufti,3 and minister.
Although Abduh was a proponent of modernisation, he argued that the
process needed to be implemented on the basis of the sharia rather
than a blind adoption of the Western model (Haddad 1994: 30-59;
Hourani 1970: 130). Upon his visit to France he came to the conclusion
that modern European societies had created a social order that was
much closer to the Quranic ideals than Muslim societies had achieved
thus far. Hence, the famous remark that is attributed to him: ‘In France
I saw Islam but no Muslims; in Cairo I see Muslims but no Islam.’
Along with Jamal al-Din al-Afghani (1838-1897), Abduh tried to develop
an Islamic alternative for the swift social and legal changes that were
being forced through by Muhammad Ali and later by the British in
Egypt. This alternative became known as al-salafiya, and has as its most
important goals reformation of Islamic education and the perception of
Islam so that Islam could find its place within a society undergoing
constant change.4
Like al-Tahtawi, Abduh considered the four Sunni schools of jurispru-
dence equal to one another and he therefore rejected the obligation to
56 MAURITS BERGER AND NADIA SONNEVELD

conform to a single school of jurisprudence (taqlid). He also criticised

the methods of the traditional Islamic religious scholars and encour-
aged Muslims to independently interpret sources of sharia such as the
Quran and the Sunna (sayings and doings of the Prophet) through a
procedure called ijtihad. In this sense, Abduh went one step further
than al-Tahtawi since the latter, being a proponent of takhayyur, still
considered himself to be bound to the four schools of jurisprudence.
Abduh was of the opinion that the national development of Egypt
was hampered because Muslims were not applying the sharia in a cor-
rect manner. Unable to make use of the rights granted to them by
Islam, Abduh considered women to be especially subordinated in so-
ciety. He argued that their position had to be improved, not just by
granting them access to education, but by reforming the sharia, in parti-
cular the parts related to marriage and divorce.
In 1915, a committee was established with the task of overseeing re-
form of the sharia in the fields of marriage and divorce. It was com-
prised of jurists and various religious scholars from the four Sunni
schools of jurisprudence (Qassem 2002: 20). In the year 1920, the
Islamic reform movement found expression in the first codification of
sharia in Egypt: rules of marriage, divorce, and other family matters
were codified in Law No. 25/1920 on Muslim personal status. Using
the principle of takhayyur, this law had incorporated jurisprudence from
the Maliki school, which granted women easier grounds on which to
apply for divorce through the courts than the Hanafi school, the official
school of jurisprudence in Egypt. Despite Abduh’s efforts to stimulate
independent and more progressive interpretations of the sharia, the
drafters of the new legislation did not, however, use the principle of ijti-
had and instead stayed well within the limits of the doctrines of the four
schools of jurisprudence.
These developments took place against the backdrop of continued,
and rising, Egyptian nationalism. These nationalist movements were ex-
pressed in both religious and secular forms and called with increasing
fervour for independence from the British.

2.2 The period from 1920 until 1965

The ousting of the Egyptian royalty and the British – towards
formation of a socialist republic

In 1922, the British protectorate ended and Egypt became an independent

constitutional monarchy. Its first constitution, modelled after the Belgium
constitution, was adopted in 1923. It established a parliamentary democ-
racy with political parties and elections. The ruling dynasty of ‘khedives’
from the line of modern Egypt’s founder, Muhammad Ali, was continued
SHARIA AND NATIONAL LAW IN EGYPT 57

as a royal monarchy. Independence was not, however, complete because

the British retained significant responsibilities in the areas of national se-
curity, defence, and foreign policy. Great Britain also did not hesitate to
use its position to interfere in internal affairs, as it still considered Egypt,
and in particular the Suez Canal, a vital part of its sphere of influence in
the Middle East. In fact, British troops stationed in Egypt were not even
fully withdrawn until 1956, after the Suez crisis.
Moreover, this new political system was largely dominated by the old
elite, namely the king and landowners with enormous land holdings
and entrepreneurs who collaborated closely with foreign businesses and
the British occupying forces. The Egyptian population, mostly rural and
poor, continued to be exploited and oppressed, and was unable to use
the new democratic system to articulate its interests. However, two new
trends developed in these times: secular and Islamic nationalism.
Egyptian secular nationalism originally began as a resistance move-
ment against the British occupation, but in the 1920s and 1930s ex-
panded into an opposition force against the monarchy and ruling elite,
who many Egyptians viewed as collaborators with the British. The na-
tionalist movement was furthermore influenced by the developments in
neighbouring Palestine, which was also under British (mandate) rule,
and where increasing Jewish migration led to armed conflicts between
Palestinians and Jews, culminating in Israel’s declaration of indepen-
dence in 1948.
Egyptian nationalism was also expressed religiously with the Muslim
Brotherhood as its main proponent. Created in 1928 by Hassan al-
Banna, the Brotherhood initially focussed on education and charitable
work, but soon became regarded as a political organisation because of
its blending of Islamic, nationalist, anti-colonial, and social programs.
Its viewpoint was that in order to improve society and adapt it to mod-
ern times one needed to look back to the example of early Islam. As
such, the call for the (re)introduction of the sharia was also a part of the
organisation’s ideology, although this particular point was not used as a
political slogan until the 1970s. The Muslim Brotherhood was the first
mass organisation based on Islam. Within fifteen years, it counted half
a million members and had two thousand offices throughout Egypt.
The Brotherhood also established offices in Palestine, Jordan, Syria and
Sudan. These independent chapters of the Brotherhood began deciding
upon their own national advocacy plans and programs from about the
1950s onwards (Mitchell 1969).

Codification of Islamic personal status law

During this period, the codification of national laws, a process that had
already started in the previous century, was expanded to the domain of
58 MAURITS BERGER AND NADIA SONNEVELD

Islamic personal status law. The first codification of Islamic personal

status law took place in 1920, with new legislation issued in 1923,
1929, and 1931. Laws concerning marriage and divorce for Christians
and Jews were not, however, affected by these reforms since their legis-
lation remained with the respective religious authorities rather than
with the Egyptian parliament.
These legal endeavours resonated both internationally and domesti-
cally. On the international front, Egypt became an example to other
Arab countries, which would later enact similar legal reforms.
Domestically, this codification process greatly influenced the women’s
movement, culminating in the establishment of the Egyptian Women’s
Union in 1923. The leader of the movement was Hoda Shaarawi, who
had led the first women’s demonstration against the British occupation
and who, by publicly removing her veil in 1923, had sent shockwaves
through Egypt. The union strongly argued for the improvement of the
position of women through family law reform and members empha-
sised that as Islamic feminists they were not fighting against Islam it-
self, but rather against male-dominated interpretations of Islam (Badran
1995: 135; Shaham 1997: 7). Although the union did not deny the
Quranic basis of men’s right to polygamy, it pointed to another verse in
the Quran that calls for equal treatment of women, a condition which,
the union argued, Egyptian men in the present circumstances would
not be able to meet. The novelty of this line of reasoning was perhaps
not the argument itself, but the fact that by directly going back to one
of the main sources of sharia – the Quran – the union in fact practiced
ijtihad.
The union also fought to limit the right of repudiation (talaq, or di-
vorce without having to produce legal reason) by subjecting its practice
to stricter provisions (Badran 1995: 127-130; Esposito 1982: 60; Shaham
1997: 9). These efforts produced some effect. In 1923, the minimum
age of marriage was raised to sixteen for girls and eighteen for boys.
And, nine years later, in 1929, the Islamic (Muslim) personal status law
of 1920 was amended. Husbands’ rights to repudiation and polygamy
were restricted by the introduction of stricter procedural conditions,
though not abolished. The amended law also gave women an additional
ground for divorce: maltreatment by the husband.
Despite these earlier more progressive changes, however, in 1931 a
new decree on personal status was introduced that included, among
other things, a new standard marriage contract in which women could
no longer insert substantive stipulations, such as the right to automatic
divorce in case the husband married a second wife, or stipulations to
the effect that a husband would provide for his wife’s children from a
previous marriage. The only stipulation that was allowed was the per-
mission for the wife to divorce herself (Zulficar forthcoming). These
SHARIA AND NATIONAL LAW IN EGYPT 59

regulations contrasted with the established legal practice of the

Ottoman period, which allowed for more flexibility and freedom to in-
clude stipulations in the marriage contract (cf. Abdal Rahman Abdal
Rehim 1996; Hanna 1996). Only years later, in 1943, 1945, and 1969,
did the Ministry for Social Affairs recommend more stringent procedur-
al conditions in favour of women regarding unilateral divorce and poly-
gamy (Esposito & DeLong-Bas 2001: 58). However, such and other re-
commendations failed time and again in the face of objections by the
religious-conservative lobby, both within the Egyptian parliament and
outside of it.
In 1943 and 1946 intestate laws and testamentary inheritance laws
were issued, respectively. Interestingly, while some of its provisions
were the outcome of a selective reading of the rulings of all four schools
of jurisprudence on this matter (takhayyur), other provisions surpassed
the official teachings of the four schools of jurisprudence. For example,
where the four schools follow the principle that bequests are restricted
to non-heirs, Article 37 of the testamentary inheritance laws of 1946 de-
crees that under certain conditions bequests to heirs are also valid
(Esposito & DeLong-Bas 2001: 64-65).
Where sharia remained the primary source of inspiration for Muslim
personal status law, European law kept its primacy in all other legal
areas. For instance, the new Penal Code of 1937 was based on Italian
criminal law, and the Civil Code of 1949 on the French civil code. In
the latter case, however, the framer of the code, the jurist Sanhuri, de-
clared that sharia was a major source of inspiration. The extent to which
this was actually the case remains controversial. Most likely, the main
foundation was French civil law, to which several Islamic judicial ele-
ments were appended (Hill 1987: 71-83). With regards to the adminis-
tration of justice, the Court of Cassation was created in 1931 and the
Council of State in 1946, both based on the French model (Bernard-
Maugiron & Dupret 2002: xxiv-li).

The 1952 revolution

In 1952, a group of young army officers calling themselves the ‘Free
Officers’ committed a coup. The King was deposed and Egypt adopted a
new constitution, replacing the 1923 version promulgated under colo-
nial rule. The new constitution proclaimed Egypt to be a ‘democratic,
socialist republic’ but, in actual fact, Egypt quickly developed into an
authoritarian military regime. Although formally Parliament was not
abolished, its authority was severely restricted and political participation
was limited such that only one party – the state party – continued to ex-
ist. The Free Officers gained momentum under the populist leadership
of Abdel Nasser (1956-1970), and a period of far-reaching socialist
60 MAURITS BERGER AND NADIA SONNEVELD

reforms followed. Nasser nationalised the banking, insurance, and in-

dustrial sectors, redistributed agricultural lands, and introduced free
education and health care. In 1956, the Suez Canal was also nationa-
lised, and, faced with international pressure, the remaining British
troops left Egypt, thereby ending the last remnants of British colonial
rule.
Three significant legal developments occurred after the 1952 revolu-
tion: the completion of the process of harmonisation of the legal system
(which had been started in 1883); the introduction of socialist principles
in legislation and the administration of justice; and, finally, the estab-
lishment of the foundations of a police state.
The definitive harmonisation of the judicial system took place be-
tween 1949 and 1956. In 1949, the Mixed Courts were abolished. As a
result, foreigners became subject to Egyptian law and justice, except
where Egyptian rules of private international law stipulated otherwise.
In 1955, the separate family courts for Jews, Christians, and Muslims
(the latter were called ‘sharia courts’) were also abolished. The abolish-
ment of the courts did not affect the separate religious family laws of
these religious communities, however, which remained intact but were
from that point forward to be administered by the national courts. This
only applied to matters of marriage and divorce, however; in all other
fields of personal status (e.g. custody, inheritance, parentage, etc), sharia
was applicable. This concurred with the Islamic legal philosophy that
sharia is the dominant law in all matters of personal status, merely al-
lowing non-Muslim exemptions with regard to marriage and divorce
(Berger 2005). Islamic law and the language of Islam, therefore, re-
mained important in the field of Muslim personal status law, with far
reaching consequences, such as in the field of apostasy (see 2.4 and 2.6
below) (Berger 2003; Yüksel 2007).
The Nasser government’s lack of initiative in introducing accompany-
ing substantive reform was reflective of its preoccupation with unifying
the public administration as well as its desire to subordinate the reli-
gious institutions, including al-Azhar, by turning them into agents of
state power. But it had no interest in unifying the different religious
personal status laws nor an interest in reforming the Muslim personal
status law itself (Yüksel 2007: 170-172). Another probable reason behind
the abolishment of the sharia courts, and of special interest for the pur-
pose of this chapter, was that the Nasser government saw the existence
of the separate family courts as a legacy of Ottoman colonialism that
had to be eliminated, just as it had abolished the Mixed Courts a few
years earlier (Yüksel 2007: 161; Brown 1997).
The second development – the introduction of socialist principles in
legislation and the administration of justice – was evident in areas such
as new rent and labour laws, which significantly strengthened the
SHARIA AND NATIONAL LAW IN EGYPT 61

positions of renters and labourers. Similarly, the position of women was

strengthened, for example by the constitutional provision of gender
equality and the right to vote. The influence of socialism furthermore
transpired in the centralised organisation of the state apparatus, the es-
tablishment (and forced membership) of state-run labour unions, and
the nationalisation of religious institutions (like al-Azhar) and of reli-
gious endowments (awqaf ). The nationalisation of al-Azhar in 1961
came with the expectation that its scholars (‘ulama’), who were now gov-
ernment employees, would endorse Nasser’s ideas of Arab Socialism
and thereby attribute religious legitimacy to his policy (Moustafa 2000).
Finally, national security was given a judicial form. This development
mainly precipitated from the increasing confrontation between the new
regime and the Muslim Brotherhood, culminating in mass arrests in
1954, the promulgation of an Emergency Law in 1956, and the estab-
lishment of security courts to apply the new law. In 1966, military tri-
bunals were created. These measures were not a novelty, however, for
they were also applied during the monarchy. The Emergency Law has
remained in effect ever since, with only briefly interrupted periods be-
tween 1964-1967 and 1980-1981. Since that time, state security agen-
cies have been given an active role in repressing political opposition.
Because of the mass prosecution, and in some cases execution, of a
number of leaders of the Muslim Brotherhood, emphasis on reintro-
duction of the sharia into law and society was relegated to the back-
ground once again (Peters 1988: 233).

2.3 The period from 1965 until 1985

Islamisation and the Infitah

This period was characterised by an upsurge in Islamic religiosity that

gradually influenced the debates on social, legal, and political reform.
Egypt’s defeat in the Six-Day War of 1967 contributed to this resurgence
of Islamic sentiments, because many Egyptians saw the military defeat
as God’s punishment of the nation that had betrayed its religious foun-
dations by introducing the principles of socialism, secularism, and na-
tionalism. In an apparent attempt to exploit this upsurge of religiosity,
Nasser decided to make religion a national theme (Jansen 1997: 162).
Although Nasser had implemented many socialist reforms, there had
been remarkable little change in the field of personal status law during
his rule of Egypt. Consequently, the position of women in particular still
lagged behind (cf. Bernard-Maugiron & Dupret 2002: 2; El Alami 1994:
116). For example, women could only obtain a divorce with great diffi-
culty, because judges did not easily grant divorce on the grounds pro-
vided by the law, not least because of the complicated procedures
62 MAURITS BERGER AND NADIA SONNEVELD

involved in providing evidence. Consequently, such court cases often

took years without guarantee of success for the women who had peti-
tioned for divorce. Furthermore, although women could become law-
yers, ministers, and business executives, they still needed the written
permission of their husbands if they wished to travel abroad. Strictly
legally speaking, as long as a husband was providing for his wife, she
was legally obliged to remain obedient to him. In cases where she be-
haved ‘disobediently’, (e.g. by leaving the marital home without his per-
mission), the husband was entitled to petition the court with an obedi-
ence claim (ta‘a), which, if granted, would result in an order for her re-
turn to the matrimonial home; refusal to do so would result in her loss
of the right to be maintained by her husband (nafaqa).
Until 1967, the husband was entitled to engage the assistance of the
police to return his ‘disobedient’ wife home by force. This practice was
prohibited that year by a ministerial decree. This, then, constituted the
only reform in the field of Muslim personal status law under the
Nasser government. According to the Ministry of Justice, more funda-
mental changes in Islamic personal status law had been planned but
they were postponed after the defeat in the Six-Day War of 1967 chang-
ed the political climate and agenda (Hatem 2000: 52).

Sharia in the constitution

When Nasser died in 1970, he was succeeded by Anwar Sadat (1970-
1981), who responded to the heightened sense of religious awareness in
several ways. Perhaps most importantly, in 1971, Sadat initiated the
adoption of a new constitution in which Islam was established as the
state religion of Egypt and in which ‘the principles of the sharia’ be-
came ‘a major source of legislation’. In a further attempt to offset leftist
and Nasserist political trends in the country, Sadat stimulated the estab-
lishment of Islamic student associations at the universities and released
thousands of arrested Muslim Brothers from prison. In 1980, the con-
stitution was again amended and the principles of the sharia were ele-
vated from a major source of legislation to ‘the major source of legisla-
tion’ (Art. 2). Hence, following on the socialist and secular decades of
the 1950s and 1960s, Islam and sharia now regained an official role in
Egyptian law and society.
This official role granted to sharia by the constitution prompted the
al-Azhar University to look into the codification of certain legal areas of
Islamic law, like penal and civil law. Despite these efforts, no real
change was brought about. A draft Islamic penal code was presented by
the Azhar to parliament in 1978, but did not result in any change of the
existing penal law. Similarly, as a result of a study ordered by Sadat in
1978, recommendations to Islamise existing legislation were presented
SHARIA AND NATIONAL LAW IN EGYPT 63

to parliament but not enacted after Mubarak’s taking office in 1981

(Botiveau 1994: 124-125). There were several reasons for this reluctance
on the part of parliament and the government. Among them, the stance
of the government towards the Islamic opposition had hardened. This
was the result of Sadat’s overtures towards the Western world, resulting
in the economic liberalisation policy of 1974 (infitah), as well as negotia-
tions with Israel resulting in the 1979 peace treaty. The peace treaty was
heavily criticised by the Islamic opposition as well as the rest of the
Arab world. The government was also afraid that Islamisation of exist-
ing legislation would lead to tensions between Christians – particularly
Copts – and Muslims. Moreover, the government was concerned that
such a policy would lead to negative reactions abroad, especially in the
United States, and that such reactions could potentially have a detri-
mental impact on the large flow of American financial aid into the
country (Peters 1987: 29-30).
The political and legal importance of the constitutional amendments
regarding sharia had interesting effects on the legal position of women,
as is illustrated by the 1979 reforms to the Islamic personal status law
and the signing of the U.N. Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) in 1980. Preparations for re-
form of Muslim personal status law in favour of women had already been
underway since the 1970s, but the recommendations that had been made
to this end were all rejected by parliament (Esposito 1982: 60). Hence,
when Sadat dissolved parliament in 1979, he used his constitutional right
to issue a presidential decree on urgent matters, whenever the parliament
is not in session. This enabled him to pass a draft containing amend-
ments to the 1920 and 1929 laws on Muslim personal status. The 1979
decree was known as Jihan’s Law, referring to President Sadat’s wife
Jihan who was said to have played an instrumental role in the passing of
the law (al-Ali 2000: 74; El Alami 1994: 116). The content of the law
sparked much resistance, both for practical and religious reasons.5
Indeed, the law was so controversial that many judges refused to im-
plement it. They claimed that the law violated sharia and was, therefore,
unconstitutional (Bernard-Maugiron & Dupret 2002: 16; El Alami
1994: 116-117; Fawzy 2004: 36). In 1985, the newly established
Supreme Constitutional Court, declared the law unconstitutional, but
not because it violated the principles of the sharia, but because of viola-
tions of legislative procedure (the law was pushed through as an ‘urgent
matter’ at a time, when no such urgency existed).6
At first sight, the signing of the U.N. Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW) in 1980 ap-
pears to be a landslide development for the position of Egyptian wo-
men, especially given the fact that according to the Egyptian legal sys-
tem, international treaties can be applied directly by the national courts.
64 MAURITS BERGER AND NADIA SONNEVELD

However, Egypt had inserted several reservations in this treaty stating

that the particular articles were not applicable when violating ‘Islamic
sharia’. On this basis, Egypt formally rejected the equality of men and
women in matters of personal status law as stipulated in Article 16 of
CEDAW.

Democracy and the rule of law

During Sadat’s administration, Egypt was, on the one hand, encoura-
ging Islamisation of society and the legal system. On the other hand,
however, the noted 1974 infitah policy of economic liberalisation stimu-
lated the improvement of the national economy and the political system
(e.g. the multi-party system was re-introduced), the position of women,
and Egypt’s international relations (i.e. Egypt switched political alle-
giance from the Soviet Union toward the United States and faced politi-
cal alienation in the Arab world by entering into a Peace agreement
with Israel in 1979). This dual approach was indicative of Sadat’s rule,
which tried to serve two audiences: a liberal and modern image for the
international audience, and an authentic and Islamic image to the
Egyptian public. These two approaches could easily contradict each
other, as was the case with Jihan’s Law of 1979 that was ultimately
crafted through and by a series of conflicting national and international
interests and pressures (cf. Welchman: 2007: 42-43).
By the early 1970s, efforts to firmly establish the rule of law and a vi-
able democracy looked promising with the reinstatement of a multi-
party system, the improvement of the judiciary’s independence, and the
release of large numbers of Islamists from prison. A decade later, how-
ever, Sadat started to crack down on the growing opposition movement
in general and the Islamists in particular. This was partly related to the
fact that many Muslim Brothers had radicalised as a result of the harsh
treatment they had suffered during Nasser’s reign. Their release from
prison had not abated the processes of radicalisation that began during
their imprisonment. Several extremist groups had split away from the
Muslim Brotherhood at this point. They considered their fellow
Egyptians, and in particular members of the government, to be non-
believers who must be violently opposed and combatted. Sadat re-
sponded to the rise of political opposition by ordering massive arrests
in 1981. During the period of one night, 1,600 opponents were de-
tained, among whom many were Islamists. A few months later, in
October 1981, Sadat was assassinated by a member of a new militant
splinter group called al-Jihad.
Sadat’s death marked the end of an era of attempts to simultaneously
modernise, reform, and Islamise Egypt and to open the country up to
the arena of international law and commerce. His vice-president, Hosni
SHARIA AND NATIONAL LAW IN EGYPT 65

Mubarak, also a military man, took over and became the next president
in the following elections.

2.4 The period from 1985 until the present

Continuation of Islamisation and modernisation

The regime of Hosni Mubarak (1981-present) can be divided into three

distinct periods:
– the 1980s – characterised by relative political and social calm but
increasing economic activity and a growing absorption of symbols
of Islam within daily social life;
– the 1990s – characterised by both political and economic liberalisa-
tion as well as the continuing Islamisation of society and increased
legal activity related to the sharia on the one hand and harsh reac-
tions to increasing Islamic opposition and violent Muslim extre-
mism, on the other hand; and
– the first decennium of 2000 – characterised by the political strug-
gle for democratic reforms and progressive Islam-motivated reforms
in personal status law.

In similar ways to his predecessor Sadat, Mubarak mostly clung to a

pragmatic policy, balancing on a tightrope between the socialist legacy
of Nasser and economic liberalisation and between Islamic activism
and socio-political reform. In both cases, the issue of sharia in law, so-
ciety, and governance against the backdrop of the demands advanced by
the international community have continued to play central roles in the
development of Egypt.

The 1980s
From the 1970s onwards, Egyptian society has provided a striking illus-
tration of the religious revival of Islam. Islam has become a primary
source of authority or at the very least a standard that must always be ta-
ken into account. Movies, literature, and clothing have become more
modest and conservative than thirty years ago, and across all academic
disciplines, Islamic views on the subject have become relevant foci of
study. Reference to Islam in public discourse has come to dominate all
facets of daily life and led to a form of Islamic political correctness
(Bayat: 2007). This development is not to be interpreted as a reaction
against modernity or international standards. To the contrary, during
this and the next decades, one witnesses a trend of conforming Islamic
concepts to modern standards.7 This has led to hybrid solutions, such
as the concept of ‘Islamic human rights’, or the ‘Islamic state’. This
66 MAURITS BERGER AND NADIA SONNEVELD

duality is also illustrated by Egypt’s ratification (since 1980) of numer-

ous international treaties contingent on their applicability only where
these laws and standards are not ‘incompatible with the sharia’ (for an
overview of these treaties, see 2.9 below).
The influence and pressure of the demands advanced by the interna-
tional community, on the one hand, and the presence of a form of
‘Islamic political correctness’, on the other hand, have also affected the
development of the personal status law, still the only field of law in
Egypt that has been based on sharia. Less than two months after the an-
nulment of the ‘Jihan’ Law, the Egyptian parliament passed new legisla-
tion on the Islamic personal status law (Law No. 100/1985). It was prob-
ably no coincidence that the introduction of a new Islamic personal sta-
tus law occurred right before the start of the 1985 U.N. conference on
women’s rights in Nairobi. The Egyptian government under Mubarak
did not wish to be branded with a negative international reputation at
this point and tried to improve its image with this new law (Badran
1995: 135; Karam 1997: 146). At the same time, however, the govern-
ment did not want to confront opponents of Muslim personal status
law reform any more than necessary. Consequently, the government
made sure that the clauses that had provoked so much controversy in
1979 were removed from the new law.8 Still, the 1985 law was certainly
more progressive and pro-women’s rights in comparison to the pre-
vious personal status laws from the 1920s, which it sought to amend9
(see also 2.6 below) (cf. El Alami 1994).
The ambivalence of the Mubarak regime was also evident in the field
of political liberalisation. Like his predecessor, Mubarak released the
members of the Muslim Brotherhood from prison. Most of them re-
nounced violence and committed themselves to charitable work, includ-
ing education and health care. Ironically, it was through these non-poli-
tical activities that the Brotherhood was able to manifest itself as an al-
ternative to the state, in particular in the health care and education
sectors, and to gain a large following among the population. The socia-
list welfare promises that the government still officially acclaimed, but
failed to deliver, was now provided by the Islamic organisations.
However, the Muslim Brotherhood was prevented from formally es-
tablishing itself as a political party, because the admittance of a party
into the political system was made subject to a number of strict condi-
tions: its program had to be substantially different from those of other
parties; any criticism of the constitution was prohibited; the party could
not campaign at or be involved in public demonstrations; and, most im-
portantly, the party could not be founded on religious principles. This
complicated the process of promised political liberalisation as the
Egyptian government was now faced with a dilemma: refusing to grant
party status to a group such as the Muslim Brotherhood, which enjoyed
SHARIA AND NATIONAL LAW IN EGYPT 67

a significant amount of popularity, would be undemocratic, but granting

it official party status would likely result in the group’s gaining of even
more legitimacy and power. A compromise was eventually found where-
by individual Muslim Brothers could participate under the banner of
another party or as independent candidates without having to hide their
own sympathies. Moreover, in 1984 and 1987, members of the
Brotherhood entered into electoral alliances with the liberal Wafd Party
and the Islamist Labour Party, respectively.

The 1990s
In the 1990s, the Muslim Brotherhood continued its activities in the areas
of health care and education. Their popularity and efficiency became illus-
trative of the government’s dysfunction in these areas. This implicit criti-
cism of the government became painfully clear during the 1992 earth-
quake, when first aid workers from the Muslim Brotherhood reached the
disaster scenes much earlier than those of the government. In response, a
law severely restricting such operations was promptly adopted.
After a period of relative calm, Egypt was confronted with other, vio-
lent forms of Islamic activism as Muslim extremists committed an un-
precedented wave of attacks on ministers, security forces, and later
Copts and tourists. These events culminated in 1997, when Muslim ex-
tremists massacred 63 tourists in Luxor (Upper Egypt). Mubarak re-in-
stated the state of emergency and Egypt rapidly became a place where
anyone displaying Islamic sympathies risked being arrested and tried in
a military tribunal. Mubarak created these military courts in the early
1990s after state security courts began to acquit accused on grounds
that evidence against them had been obtained through the use of tor-
ture and, as such, was inadmissible (Brown 1997). The move to try civi-
lians in courts where the evidentiary standards were far less stringent
than civil or even security courts was quite a dramatic break with the
previous decades’ emphasis on support for democratic institutions and
rights-based legislation.
The growing popularity of the Muslim Brotherhood combined with
violent attacks by Muslim extremists in Upper Egypt, and the fact that
Islam had become a generally accepted part of the social and political
discourse did not leave legal development unaffected. Individual claim-
ants began bringing claims before the courts as to the ‘un-Islamic’ con-
tent of books, films, and government decisions (e.g. the prohibition on
wearing the niqab (veil covering the face) in public schools and the ban
on female circumcision in state hospitals) (Bälz 1998, 1999).
In some cases, claimants found a sympathetic ear within the judi-
ciary. This appeared especially to have been the case, when Islamist law-
yers brought before the court the case of university professor Nasr Abu
68 MAURITS BERGER AND NADIA SONNEVELD

Zayd, whom they accused of apostasy on the basis of his academic writ-
ings. While apostasy is not punishable under Egyptian penal law, it does
carry certain legal consequences under personal status law such as the
interdiction of marriage between a Muslim woman and a non-Muslim
man, or intestate inheritance between Muslims and non-Muslim rela-
tives. In the case of Nasr Abu Zayd, it was argued that his writings ren-
dered him an apostate and, consequently, that the marriage with his
Muslim wife was void, since he was not a Muslim anymore (Berger &
Dupret 1998; Berger 2003). This argument was upheld by the Court of
Cassation, which, after lengthy deliberations on the nature of his writ-
ings, ruled in 1997 that Nasr Abu Zayd was indeed an apostate. This ar-
gument has since then been successfully used against a number of
Egyptian intellectuals (Yüksel 2007: 179), although legislative changes
have curtailed this practice.10
In contrast, the Supreme Constitutional Court, entrusted with the re-
view of legislation on the basis of their constitutionality – including
Article 2 declaring sharia to be ‘the principal source of legislation’ – has
adopted a more cautious position with regard to the use of Islamic rules
and principles (Bälz 1998, 1999; Bernard-Maugiron 1998, 2003). The
Court has laid down a few important ground rules: first, it is the only
court allowed to rule on (in)compatibility of Egyptian legislation with
the sharia; and, second, only legislation implemented after 1980 must
conform to the principles of the sharia. Furthermore, the Constitutional
Court holds a restrictive view of what is encompassed by obligatory
rules of sharia and, consequently, accords the legislature a wide margin
of legislative freedom.

The 1990s were also tumultuous with regard to the subject of human
rights. Several Egyptian human rights organisations that adopted an in-
dependent and critical stance towards the government were established.
Western countries gave considerable financial and moral backing to
these groups in an effort to further stimulate a broader agenda for de-
velopmental cooperation, which placed a high value on the development
of civil society. The Egyptian government tacitly tolerated these organi-
sations; but, in 1999, it amended the law on non-governmental organi-
sations so that human rights organisations came directly under the
scrutiny of the Ministry of Social Affairs, causing these organisations to
lose their independence. Furthermore, in 2000, several human rights
organisations were indicted for accepting Western funds to finance
their activities. This action was justified with a dormant decree from
1992 that was based on the Emergency Law.

As for economic liberalisation, the economic crisis of the 1980s neces-

sitated far-reaching economic reforms. Western willingness to waive
SHARIA AND NATIONAL LAW IN EGYPT 69

large parts of Egypt’s considerable international debt after its participa-

tion in the Gulf War in 1991 was a first step in this process. By 1996,
the Egyptian government had embarked on structural measures of pri-
vatisation and liberalisation (Dupret 2003). These measures were met
with great confidence from national and foreign investors as well as
from the World Bank and the IMF. Because the constitution of 1980 re-
quired all legislation to be in conformity with the principles of sharia,
the new economic and commercial legislation has been scrutinised in
this respect. This constitutional requirement has thus far, however, not
proven to be an obstacle to the enactment and implementation of laws
that complied with the modern financial world, such as the 1999 Code
of Commerce.
Islamic finance has gained popularity, but it has manifested itself in
the private finance sector rather than within the scope of the above
mentioned legislation (al-Ahmad 1996). Its focus on consumer credit
in combination with its Islamic credentials have made Islamic banking
an attractive alternative to common banks that, due to their socialist
heritage, traditionally targeted large industrial and construction projects.
Even a major fraud scandal in one of the main Egyptian Islamic finance
houses in the early 1980s failed to affect the credibility of Islamic fi-
nance. By the late 1990s, Islamic financial services were provided by
Egyptian as well as international banks. A matter of debate remains,
however, as to what extent ‘Islamic finance’ is indeed another way of fi-
nancing or whether it follows established economic and legal principles,
but refrains from certain types of activities, thereby rephrasing its finan-
cial products in ‘Islamic’ terms (el-Gamal 2003; Kuran 2004). The fact
that Islamic financial institutions were not affected by the financial cri-
sis of 2008 was reason for some to argue the superiority of this kind of
financing; others pointed out that Islamic finance takes place in a niche
of the financial market, which happened to be outside the scope of ac-
tivities that were involved in the crisis.
Concluding, we can say that the 1990s saw a mounting legal activity in
which the sharia played a pivotal role. From the side of the government,
which had committed itself under Sadat to the sharia by means of consti-
tutional reform, most legislation paid lip service to the sharia (mostly
with the remark that the law ‘is not contradictory to sharia principles’),
but actually showed no radical changes in terms of the previous legisla-
tion or significant differences with comparable legislation in non-Muslim
countries. By contrast, Islamic regulation gained much popularity in the
private sector. This was primarily expressed in dress codes and rules of
morality and social behaviour, but also in adoption of Islamic financial in-
struments, whether by private banks or in neighbourhood settings. This
private initiative also became manifest in the increase of litigation on
Islam-related matters. This is exemplified by the many cases in which
70 MAURITS BERGER AND NADIA SONNEVELD

intellectuals, academics, and artists have been accused of un-Islamic be-

haviour or views that, if proven, would render them apostates. Cases
brought before the Supreme Constitutional Court on claims that promul-
gated decrees and laws contradict the sharia, and therefore Article 2 of
the Constitution, are also indicative of this trend. The general eagerness
to petition the courts since the 1990s has resulted in a growing impor-
tance in the role of the judiciary, whereby the lower courts show a ten-
dency to easily accept Islamic rules and legal reasoning, often to be re-
buked by higher courts for failing to adhere to the national law of Egypt.

The new millennium

After the relative political calm and economic optimism of the late
1990s, the new millennium brought with it new setbacks as Muslim ex-
tremists again committed a series of bloody attacks in 2004 and 2005.
While the government reacted harshly and arrested many people, it si-
multaneously implemented a number of political reforms. Many ana-
lysts see this liberalisation and modernisation of policy as a reaction to
the 9/11 attacks in the United States, which caused a major change in
American policy vis-à-vis the Middle East. Where in the previous two de-
cenniums, the U.S. had supported the Egyptian regimes for its stability
rather than its democratic credentials, this policy was drastically revised
after the 9/11 attacks. The U.S. administration was of the opinion that
the lack of democracy in Arab countries was the root cause of Islamic
terrorism.
With this change in American policy, the Egyptian government was
forced to walk the tightrope between undemocratic measures allegedly
needed in the interest of security and stability, and international pres-
sure to democratise. For example, in 2005 and 2007, the government
presented constitutional amendments in which the one-candidate presi-
dential elections (i.e. people could vote ‘yes’ or ‘no’ for a single presi-
dential candidate nominated by parliament) were changed into multi-
candidate elections (2005). At the same time, however, the number of
presidential terms was increased, allowing President Mubarak to again
run for office. In the presidential elections of September 2005, nine
candidates ran alongside President Mubarak. However, in ways similar
to the one-candidate elections, the multi-candidate elections were rife
with allegations of foul play, violence against the opposition and demon-
strators, and coercion and intimidation, causing a number of interna-
tional players and human rights groups to question Egypt’s ‘newfound’
democracy. In any case, Mubarak won the elections and began his fifth
term in office.
Another amendment presented as a democratic reform was the pro-
position to lift the state of emergency in exchange for more stringent
SHARIA AND NATIONAL LAW IN EGYPT 71

anti-terrorism and anti-opposition regulations. Parliament consented,

but allowed for another extension of the state of emergency until mid-
2010, during which period it intends to draft new anti-terrorist legisla-
tion to replace the Emergency Law.
Other ‘democratic’ constitutional amendments that were severely cri-
ticised include those relating to political participation and the electoral
process. Article 5 of the Constitution was amended in order to prohibit
not only the formation of a political party on religious grounds (a ban
that already existed in the Law on Political Parties of 1977), but also any
political activity on a religious basis or within any religious frame of re-
ference. In addition, Article 62 of the Constitution was amended in
such a way as to marginalise the participation of independent candi-
dates in elections. Most likely these amendments were motivated by the
parliamentary elections of late 2005 in which the independent candi-
dates of the Muslim Brotherhood won a landslide victory.
Finally, amendments to Article 88 of the Constitution minimised ju-
dicial supervision over elections through the establishment of an elec-
toral committee that is no longer comprised purely of judges, but now
includes additional members to be appointed at the discretion of, and
directly by, the President. According to critics, this amendment was a
response to the increasing number of judicial decisions following each
election, invalidating parliamentarian seats due to irregularities in the
electoral process.

In contrast to the 1990s, when no legal initiatives were undertaken in

the field of Islamic personal status law, the first years of the new millen-
nium witnessed several substantive reforms. This period of reform is
symbolically expressed by one of the most radical reforms also being
Egypt’s first law of the twenty-first century. Article 20 of Law 1/2000 ef-
fectively provides for the right of women to unilaterally divorce their
husbands through a court procedure called khul‘ (Sonneveld 2009; see
also 2.6). This is exceptional for two reasons. Firstly, while the law was
presented as a law of procedure, it, in actual fact, contains rules of sub-
stantive law. Secondly, although the article on khul‘ was presented as
being in accordance with the sharia, it is not part of the corpus of any
of the four Sunni schools of jurisprudence. Sunni jurisprudence is
unanimous in accepting a khul‘ divorce only upon permission of the
husband, but the new Egyptian law deemed the husband’s consent to
his khul‘ divorce irrelevant. This law therefore brought about an expan-
sion of the authority of the legislature with regard to interpretation of
the sharia. In addition to the instruments that had been used by
Egyptian legislature until 1985 in pushing for legal reforms, namely ta-
khayyur and talfiq, the concept of ijtihad had now been incorporated in
order to reach an interpretation of khul‘ nonexistent in the four Sunni
72 MAURITS BERGER AND NADIA SONNEVELD

schools of jurisprudence (cf. Arabi 2001). The Supreme Constitutional

Court affirmed this interpretation, declaring in December 2002 that
the article on khul‘ was in compliance with the sharia.
A number of other reforms in personal status law were enacted
quietly during this period in the slipstream of the successful introduc-
tion of the khul‘ law (Sonneveld 2009). In August 2000, for instance,
after consistent opposition during the 1990s, a new standard marriage
contract was introduced and adopted; it gives women the right to insert
substantive conditions, such as the right to automatic divorce in case
the husband marries a second wife and the right to work and education,
in the marriage contract. In November 2000, another controversial is-
sue was tackled, when women were given the option of applying for a
passport without the consent of their husbands, which, in turn, gave
them the right of travel without spousal consent.
In January 2003, the first female judge was appointed in Egypt.
Tehani al-Gebali became a judge on the Supreme Constitutional Court.
Together with the coming into force of the new family courts in
October 2004, this move was seen by many proponents of women’s
rights as a first step towards the appointment of female judges in fa-
mily courts. Indeed, in April 2007, this goal was realised when the
Supreme Judicial Council swore in thirty female judges to different
courts of first instance in Cairo, Giza, and Alexandria.11
In legal terms, the first decade of the millennium was characterised
by two developments: political reforms of an allegedly democratic nat-
ure; and reforms in the field of personal status laws. Whereas the latter
were based on Islamic law, the first were not. Interestingly, the
Islamically-motivated reforms of personal status law were more progres-
sive than ever before, while the political reforms largely paid lip service
to democracy, imparting little actual change. One of the explanations
for the apparent paradox in introducing women’s rights by way of refer-
ence to sharia is the concerted effort of a number of women activists to
base reform in the multiple sources on Islamic thinking and the sharia
by exploring ways of ijtihad, thus in effect sidestepping the intellectual
legacy of classical Islamic legal theory (Arabi 2001; Singerman 2005).12

2.5 Constitutional law

Egypt’s constitution was adopted in 1971, and amended in 1980, 2005

and 2007. The 1971 constitution replaced Nasser’s heritage of one-party
socialism with the more democratic system of a parliament with political
parties. The amendments of 1980 were concerned with the role of sharia
in national legislation (see below) and laid down the powers of the
Supreme Constitutional Court, which had been established the year
SHARIA AND NATIONAL LAW IN EGYPT 73

before. Of the 2005 and 2007 amendments, the latter were the most
comprehensive (see 2.4). Their main thrust is toward democratic reform
and economic liberalisation. New repressive provisions about emergency
law have already been contested strongly, and the political debate about
the need for another round of reforms is expected to continue.
According to this constitution Egypt is a ‘democratic state’ based on
the separation of the three powers of the government, the People’s
Assembly and the judiciary. The political system is officially based on
the plurality of parties, but at the same time it is forbidden to establish
a political party on the basis of religion, race or gender, nor when the
new party’s programme is similar to that of an existing party. In addi-
tion, the constitution lays down the basic rights and freedoms of citi-
zens, which include the freedom of belief and the freedom of practising
religious rights, the freedom of expression, as well as press freedom.
The Supreme Constitutional Court was established for the purpose of
reviewing compatibility of legislation with the Constitution. In Egypt,
legislation is promulgated by the People’s Assembly. The 1980 amend-
ment made ‘the principles of the sharia’ the primary legal source for all
Egyptian legislation. The Supreme Constitutional Court has ruled that
this condition for legislation only applied to laws promulgated after
1980. Although the Supreme Constitutional Court is the only judicial
forum with jurisdiction to evaluate the constitutionality of laws, the
Supreme Administrative Court (the highest legal organ of the Council
of State) has also played a role in assessing legislative compatibility with
the sharia. From case law it appears that both Courts interpret ‘princi-
ples of the sharia’ restrictively. According to both courts, these princi-
ples are confined to rules that are ‘fixed and indisputable’, which tech-
nically refers to rules explicitly mentioned in the Quran or the Sunna,
and that are not open to deviation or interpretation. For all other rules,
the Courts have held that the Egyptian legislator is authorised to inde-
pendently interpret the sharia (ijtihad) in a way that respects the goals
and intention of the sharia (Arabi 2002; Bälz 1998, 1999; Berger 2003;
Dupret 1997).
The Constitution provides for an independent and non-arbitrary judi-
ciary. The Egyptian judiciary is indeed known for that. In section 2.4 we
have noted, for example, that the government in its prosecution of al-
leged terrorists felt compelled to turn to military tribunals because regu-
lar as well as security criminal courts began to increasingly acquit sus-
pects due to the unlawful manner in which evidence had been pro-
cured. Another example is the nullification of electoral results at
various elections, although this form of judicial scrutiny was curbed by
the constitutional amendment of 2007.
74 MAURITS BERGER AND NADIA SONNEVELD

2.6 Personal status and family law

Egyptian personal status law is based on the Hanafi school of jurispru-

dence. This law applies to all Egyptians, regardless of their religion. An
exception applies to issues of marriage and divorce, where Christians
and Jews may apply their own laws.13 Application of these laws is deter-
mined by the religious denomination of the litigants involved, providing
that the couples are of the same religion (Islam, Christianity, Judaism),
denomination (for the Christians: Catholic, Orthodox, and Protestant),
and sect (for the Orthodox: Coptic, Greek, Syrian, Armenian). For mar-
riages between individuals of different religions (e.g. the union between
a Jew and a Christian) or between different denominations (e.g. the un-
ion between a Catholic and an Orthodox) or between different sects
(e.g. the union between a Greek Orthodox and a Coptic Orthodox), the
Muslim law of marriage and divorce applies (Berger 2001).
Islamic personal status law, including marriage and divorce, has only
been partially codified in Laws No. 25/1920 and No. 25/1929, both
amended and augmented by Laws No. 100/1985 and No. 1/2000.
Where the codified law is silent on a given matter, the judge must re-
sort to the ‘prevalent opinion within the Hanafi school of jurisprudence’
(Decree on the Organisation of the Shari’a Courts (1931), Art. 280).

Marriage
A marriage concluded in accordance with the applicable religious law
(Islamic, Christian, or Jewish) needs to be registered in order for it to
be legally valid. For Muslims, registration must be undertaken with the
civil registrar (ma’dhun). Non-Muslims and foreigners are required to
register their marriage with the Ministry of Justice. Unregistered mar-
riages – urfi marriages for Muslims, church/synagogue marriages for
non-Muslims – are, in principle, in legal limbo. While they may be con-
sidered socially valid, they are not recognised by the courts as per
Article 99 on the Law on the Organisation of Sharia Courts. This is
especially problematic for women who are, thus, prevented from peti-
tioning the court for enforcement of their marital rights (e.g. mainte-
nance or divorce). However, after the introduction of new procedural
law on personal status in 2000, women in urfi marriages have been gi-
ven the possibility to divorce, on the condition that they provide some
form of documentation proving their marriage.
One of the formal conditions to an Islamic marriage is the offer and
acceptance of the bride and the groom in the presence of two male
Muslim witnesses. A religious ceremony or the presence of a cleric is
common, but not required under the law. In August 2000, a new mar-
riage contract was introduced which added the possibility of including
SHARIA AND NATIONAL LAW IN EGYPT 75

certain conditions for marriage annulment. Another condition of an

Islamic marriage is the dower (mahr or sadaq), a sum of money to be
paid by the groom to the bride.14 Usually, only a small part is paid upon
conclusion of the marriage (muqaddam al-sadaq, or prompt dower) and
the remaining part (mu’akhkhar al-sadaq, or deferred dower) upon di-
vorce or decease of the husband. The dower must be registered in the
marriage contract.

Divorce
Under Islamic law, men may end their marriages unilaterally without
being required to produce a reason for the divorce. This form of di-
vorce, or end to the marriage, is called repudiation (talaq). Under
Egyptian law, this right is upheld but can only be enforced once the
husband has registered the divorce with the civil registrar (ma’dhun)
within thirty days after he has pronounced the talaq. The registrar is, in
turn, required to notify the wife of her divorce. Failure to register the re-
pudiation does not render the divorce invalid, but is punishable by a jail
sentence of up to six months and/or a penalty of up to two hundred
Egyptian pounds (approximately 25 Euros).
A woman in Egypt can initiate divorce in various ways: in court by ju-
dicial divorce (tatliq), by means of contractual stipulations, and by way
of khul‘ (upon payment of financial compensation and renunciation of
financial rights). The latter can also take place outside the court when
the husband divorces his wife upon her request (which mostly is
granted only upon payment of financial compensation).

In the first type of female-initiated divorce (tatliq), the wife may petition
the court for divorce on one of the grounds identified in the law. These
grounds include: a) the husband’s absence of more than one year with-
out an acceptable excuse, or a three-year absence caused by a prison
sentence; b) damage or harm caused to the wife, which is defined on
the basis of the wife’s socio-economic position (and in certain cases in-
cluding the husband marrying a second wife); c) failure by the husband
to fulfil his legal obligation of maintaining his wife; and d) a severe ill-
ness of the husband of which the wife was not aware at the time the
marriage was concluded.
The second way for women to obtain divorce is through contractual
stipulations. Since 2000, a woman has the possibility to include such
stipulations in her marriage contract. For instance, she can stipulate
that her husband will not marry another wife or that she is allowed to
work outside the home. When the husband violates these stipulations, a
woman has the right to dissolve the marital bond. Another kind of con-
tractual agreement is that the man cedes his right of talaq to his wife,
76 MAURITS BERGER AND NADIA SONNEVELD

so that she may unilaterally divorce herself (talaq al-tafwid). In actuality,

however, women in Egypt seem reluctant to make use of this new right
(Sonneveld 2009).
In the third form of divorce, a wife may ask her husband to divorce
her in exchange for financial compensation. In practice, financial com-
pensation in these cases has meant the waiving of alimony payments or
of the remaining portion of the dower. This divorce, concluded by mu-
tual consent, is referred to as khul‘ or ibra’ and falls under the purview
of the civil registrar (ma’dhun). A non-consensual form of khul‘ was in-
corporated into Egyptian law for the first time in 2000, introducing a
radical break with the khul‘ as commonly defined by classical Islamic
jurisprudence. According to this jurisprudence, a khul‘ divorce requires
the husband’s consent. The woman’s wish for divorce could, therefore,
easily be frustrated by the husband, either because he did not want to
divorce her or because he found the financial compensation inadequate.
Under the new law of 2000, the divorce has to be legally accepted by
the judge – without the need for the husband’s consent – when the wife
has met all of the following conditions: a) she forfeits her financial
rights; b) she returns to her husband the prompt dower which her hus-
band gave her when contracting the marriage; c) she goes through a
period of reconciliation; and d) she explicitly proclaims in court that she
hates living with her husband and, as a result of that, is afraid to cross
the limits of God.
Another type of divorce that has gained notoriety is the invocation of
nullity of a marriage based on the conversion or apostasy of one of the
spouses. This is related to the rule that allows for mixed religious mar-
riages if the husband is Muslim, but declares void a marriage between
a Muslim woman and a non-Muslim man. If in a non-Muslim mar-
riage, for instance, the woman converts to Islam, her marriage is ren-
dered void. The same applies to a Muslim couple where one of the two
– but especially the husband – renounces Islam or converts to another
religion, hence becoming an apostate of Islam. These situations occur
in non-Muslim marriages in order to obtain a divorce. Since the 1990s,
however, it has also been used as a legal instrument to substantiate the
accusation of un-Islamic behaviour: since apostasy as such is not pun-
ishable under Egyptian law, a third party may call upon Egyptian mar-
riage law in order to nullify a marriage of a person due to his or her al-
leged apostasy. The most infamous case was that of the abovemen-
tioned Nasr Abu Zayd, a university professor whose work was
considered blasphemous, and who in 1996 was divorced from his wife
on the basis of apostasy. Consequently, the legal basis upon which a
third party could raise such a divorce case (hisba) has changed: from
2001 only the public prosecutor may raise divorce cases on the basis of
the accusation of apostasy.
SHARIA AND NATIONAL LAW IN EGYPT 77

Since the establishment of a new Family court system in 2004, all mat-
ters pertaining to divorce, such as alimony and custody, are treated by
one and the same judge in one court. The new legislation also specifies
that husbands in divorce cases initiated by their spouses can appeal
only once against the court’s decision and this appeal cannot be to the
Court of Cassation. In case of a divorce through khul‘, the husband can-
not appeal at all.

Consequences of divorce
After divorce, children are entitled to alimony (nafaqa) to be paid by the
father. Since 2000, men who do not fulfil their alimony obligations are
punishable with jail sentences of up to thirty days.
Egyptian law allows for two kinds of financial compensation for the
ex-wife, depending on the type of divorce. In the event of a regular re-
pudiation or judicial divorce, men are required to continue maintaining
their ex-wives for a period of three months (the so-called ‘iddah period
during which the woman cannot marry another man in order to make
sure that she is not pregnant by her ex-husband). In case of repudia-
tion, the man is also obliged to pay financial compensation (muta‘), if
the wife did not play a role in bringing about the repudiation and did
not consent to it. This compensation may equal the maintenance for a
period of up to at least two years. Women who initiated the divorce
through khul‘ or by invoking breach of the marital contract stipulations
are not entitled to either ‘iddah or muta‘ compensation.
With regard to the children of divorced parents, a distinction must be
made between guardianship (wilaya) and fosterage (hadana) of the chil-
dren. Guardianship refers to the overall supervision of the children in
financial affairs and matters such as the choice of school. Guardianship
lies with the father and remains with him after divorce until the chil-
dren reach maturity. Fosterage on the other hand is the day-to-day care
of children and is the right and duty of divorced mothers. According to
Egyptian law, this right applies to daughters until the age of twelve and
to the sons until they reach ten years of age. Once the fosterage periods
lapses, children are transferred to the care of their father unless a judge
determines that it is in their best interest to remain with their mother.
In case of the latter, the law allows fosterage of girls to be extended until
they marry (or reach the majority age of 21 years before that time) and
of boys until they reach the age of fifteen.

Inheritance
Islamic inheritance law has a strong religious foundation due to the
many inheritance rules laid down in the Quran and Sunna. Egyptian
78 MAURITS BERGER AND NADIA SONNEVELD

intestate and testamentary inheritance laws (Law of 1946 and 1943, re-
spectively) are based on the Hanafi school of law, although selective use
has been made of rules of the other schools of law (takhayyur). In some
instances rules have been inserted that have no basis in sharia at all,
like the possibility to testate to legal heirs.
Intestate law adheres to the complicated system of fractions and por-
tions of the estate to be divided in a certain order among the heirs speci-
fied in the Quran and the male heirs on father’s side. By testament, a
maximum of one third of the estate may be bequeathed. These laws ap-
ply to all Egyptians, regardless of their religion. This means, among
other things, that according to intestate inheritance law women are en-
titled to half the amount men are entitled to if they both occupy the
same testamentary inheritance positions (e.g. when they are brother and
sister). It also means that Muslims and non-Muslims may not legally in-
herit from each other; these rules, however, do not apply to testamentary
bequests. Therefore, in the case of a marriage between a Muslim man
and a non-Muslim woman, the spouses may not inherit from each
other; neither may the children in such a marriage, who are legally con-
sidered Muslims, inherit from their non-Muslim mother. However, this
religious impediment does not apply to the testamentary inheritance, so
that Muslims may freely – but up to a maximum of one third of the es-
tate – testate to non-Muslims and vice versa.

2.7 Criminal law

The Egyptian Criminal Penal Code, adopted in 1937, was influenced by

the Italian Criminal Code, but does mention in Article 7 that its applica-
tion should not ‘violate a right established by the Sharia’, a restriction
that was rarely applied (Najjar 1992). Egyptian criminal legislation ap-
plies many fundamental rule of law concepts such as the principle of
legality of crime and penalty, a presumption of innocence, equality of
arms, and the right to a defence (Akida 2002: 39-40).
Under Egyptian criminal law it is possible to criminally prosecute
missionary activities conducted by non-Muslims on the basis of Article
98f of the Criminal Code, while missionary activities conducted by
Muslims are allowed. Such cases have thus far never led to actual legal
prosecution by the public prosecutor. It must be noted, however, that
this provision is related to public order rather than to sharia. This is
probably due to both a colonial past with strong Christian missionary
activities and a pan-Arab past with an emphasis on Arab unity as op-
posed to religious disunity: this has led up to the general notion that re-
ligious disharmony, whether created by incitement or missionary activ-
ities, is detrimental to national security.
SHARIA AND NATIONAL LAW IN EGYPT 79

Overriding the Criminal Code, however, is the Emergency Law, which

has been in effect since it was enacted in 1956 (although it actually dates
back to the monarchy), with the exception of two short breaks in the peri-
ods between 1964-1967 and 1980-1981. The required parliamentary per-
mission for extending the state of emergency is duly given every three
years. The main justification for this extension is the fight against terror-
ism and Islamic extremism. This law authorises the president to enforce
measures that are contrary to national laws, such as restricting the free-
dom of association, assembly, and expression; the searching of people
and places; and the arbitrary arrest and extended detention of persons
suspected of posing a threat to national security. Presidents Sadat and
Mubarak repeatedly used their unbridled rights under the Emergency
Law in their alleged fight against terrorism and Islamic extremism.

2.8 Other legal areas, especially economic law

Pursuant to the economic liberalisation policies (infitah) started by

President Sadat in the 1970s, only in 1996 did Egypt seriously began a
process of implementing extensive economic reforms. To this end, leg-
islative changes and legal amendments have been introduced that posed
drastic changes of the otherwise socialist-oriented legal structure. For
example, in 1999 a new commercial code was promulgated that incor-
porated the latest legal developments in modern commercial law.
Remarkably, this, and other legislation on matters of investment, private
enterprise, and the stock market, has until now been found to be in ac-
cordance with sharia (as is required by Article 2 of the constitution).
Due to the liberalisation of the economy and its regulations, private
commercial and financial initiatives have picked up considerably since
the 1980s (Amin 1995; Moore 1997; Oweiss 1990). A special branch
that gained popularity within this development was the financial busi-
ness based on Islamic principles, commonly referred to as ‘Islamic
banking’ or ‘Islamic finance’. These principles include the avoidance
of usury and the prohibition of interest, and have resulted in the crea-
tion of legal constructs for financial contracts that meet the standards
of modern financial transactions as well as the tenets of sharia.
Contracts for mortgage and insurance, while technically not permitted,
are now possible in an alternative form of contract that meets the re-
quirements of sharia. The significance of these Islamic financial in-
struments is widely debated. While some argue that the newly con-
strued Islamic contracts are not essentially different from common
modern contracts, others point at the fact that Islamic finance only
covers a limited part of the field of finance and investment (el-Gamal
2003; Kuran 2004).
80 MAURITS BERGER AND NADIA SONNEVELD

2.9 International treaty obligations and human rights

Egypt’s formal commitment to international human rights is laudable,

with numerous treaty and convention ratifications beginning from the
early 1980s. Its actual human rights record, on the other hand, is poor.
Egypt remains a state ruled by an authoritarian regime where funda-
mental rights such as the prohibition against torture and ill-treatment,
freedom of expression, and due process under the law are regularly
denied.
The almost continuous use of the Emergency Law since 1956 makes
it easier for the authorities to arrest and detain for extensive periods of
time anyone who poses what they consider to be a threat. While its use
has been justified by the threat of terrorism and Islamic extremism, in
practice it has meant regular crackdowns on the Muslim Brotherhood;
unjustified and unchecked arrests and detentions of journalists, blog-
gers, and human rights defenders; and political harassment and arbi-
trary detention of opposition leaders and supporters.
Several local and international human rights organisations have for
many years criticised Egypt’s human rights record, in particular with re-
gard to routine torture, arbitrary detentions, and unfair trials before
military and state security courts. In 2005, President Mubarak faced un-
precedented public criticism, when he clamped down on pro-democracy
activists challenging his rule.
There is quite some legislation that is discriminatory with regard to
non-Muslim minorities. Laws dating from Ottoman times that restrict
the building of churches and open worship for non-Muslims have re-
cently been eased, but major construction still requires governmental
approval. Another issue is that of the religion mentioned on Egyptian
identity cards. Because the Egyptian legal system only recognises three
religions (Islam, Christianity, and Judaism), members of other reli-
gions, such as Baha’ís, cannot obtain identification documents
(although an Egyptian court in early 2008 ruled to the contrary). Also, a
Muslim who converts to another religion cannot change his identity
card, (which, for instance, would be helpful to indicate the applicable fa-
mily law to the court).
It must be noted that the role of sharia in this respect is limited. An
exception is personal status law, which contains quite some gender and
religious inequalities that are directly derived from Islamic tenets. It is
this aspect that also shows in the reservations made by Egypt in its rati-
fication of international human rights treaties. These reservations gen-
erally state that the treaty should not infringe upon principles of the
sharia.
SHARIA AND NATIONAL LAW IN EGYPT 81

For example, when ratifying the International Covenant on Civil and

Political Rights (ICCPR) in January 1982, Egypt noted the following:
‘taking into consideration the provisions of the Islamic Sharia and the
fact that they do not conflict with the text annexed to the instrument,
we accept, support and ratify it.’ Similar reservations were made to the
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). These reservations are either expressed with regard
to entire treaties or with regard to specific articles. In contrast, the June
1986 ratification of the Committee Against Torture (CAT) took place
without the specification of any reservations. This can be explained by
the fact that the sharia-reservations usually refer to issues of equality, in
particular equality based on gender and religion. As demonstrated in
section 2.6, such inequalities are widespread in the Egyptian religion-
based family laws (both for Muslims and non-Muslims), laws that are
often considered sacrosanct.
A complicated case of human rights violations is that of female cir-
cumcision, an age old custom that pre-dates Islam and is practised by
both Christians and Muslims in Egypt. According to recent estimates,
FGM is practiced on more than 95 per cent of girls in Egypt. In the
1990s, the Sheikh of al-Azhar, one of the highest religious authorities
in Egypt, declared this practice to be in conformity with Islam. His suc-
cessor, Sheikh Tantawi, has expressly argued the opposite since 1996. A
similar rejection was made by the Coptic pope Shenouda. A 1996 min-
isterial decision banning female circumcision in hospitals and clinics
was brought before court for allegedly conflicting with the sharia, but
this case was emphatically rejected by the Supreme Administrative
Court (Bälz 1998). The ministerial decree proved ineffective, however,
and in 2007 a law made it punishable to perform such circumcision.
However, the custom appears hard to eradicate.
The Egyptian state, while often guilty of perpetrating or condoning
human rights violations, claims to adhere to human rights. For this pur-
pose, the government in 2003 established the National Council for
Human Rights, headquartered in Cairo; its director directly reports to
the president. The council has come under heavy criticism by local
NGO activists, who contend it undermines human rights work in Egypt
by serving as a propaganda tool for the government to excuse its viola-
tions and to provide legitimacy to repressive laws such as the renewed
Emergency Law (soon to be replaced by counter-terrorism legislation).

2.10 Conclusion

Although brief, the French occupation of Egypt in 1798-1801 inspired

Egyptian leaders to modernise the country according to European
82 MAURITS BERGER AND NADIA SONNEVELD

models. In 1883, comprehensive national legislation of mainly French

origin was introduced, as was a new national court system to imple-
ment the new laws. As a result, the jurisdiction of existing sharia courts
was limited to personal status law. Later, in the 1920s, this personal sta-
tus law was codified, at the time a unique development in sharia
jurisprudence.
While limited in terms of its applicability in national law, sharia re-
mained important as calls for modernisation were paralleled by reforms
in Islamic thought. Islamic modernisers were intent on modernising
the country, but they did not want Egypt to lose its Islamic character.
Thus, rather than blindly adopting Western models, they argued that
modernisation needed to be rooted in sharia. In order to adapt sharia to
modern times, Islamic reformers such as al-Tahtawi and Abduh argued
that the four (Sunni) schools of Islamic Law were equal to each other
and that instead of conforming to one school of law (taqlid), Muslims
needed to follow the legal interpretations of one of the four schools of
law that suited the general public interest best (a practice known as ta-
khayyur). Abduh went even further, suggesting that Muslims should in-
dependently interpret the sources of sharia by a process of free interpre-
tation (ijtihad).
However, at the beginning of the twentieth century, both substantive
as well as procedural laws were still largely derived from French codes,
with the exception of marriage laws. Reform of sharia was thus largely
limited to the field of personal status, where the sharia provisions relat-
ing to marriage and divorce were codified. Aiming to enhance the posi-
tion of women, the first codification of Muslim personal status law in
1920 gave women more rights to divorce while simultaneously curbing
men’s right to polygamy and divorce by introducing procedural con-
straints. In 1929, this law was amended, further expanding women’s
grounds for divorce and curtailing men’s right to polygamy and
divorce.
This period also witnessed Egypt’s independence from Great Britain
in 1922 and the introduction of its first constitution in 1923. The consti-
tution was modelled after the Belgium constitution and contained no
references to sharia. In 1928, the Egyptian Muslim Brotherhood was es-
tablished. Though the reintroduction of sharia was part of the organisa-
tion’s ideology, it was not until the 1970s that it was used as a political
slogan.
Under the leadership of Nasser (1952-1970) and the prevalent secular
and socialist ideology of that time, the introduction of sharia was
pushed even more to the background. In 1955, the Religious Courts
were abolished and replaced by national courts although religious laws
were not abolished and instead remained intact. Many socialist ele-
ments were introduced and women were given more constitutional
SHARIA AND NATIONAL LAW IN EGYPT 83

rights. However, as there were no corresponding reforms in personal

status law, women could vote, become ministers and work outside the
home, but in order to leave the marital home or travel, they still needed
the permission of their husbands.
Egypt’s defeat in the Six-Day War of 1967 gave impetus to the resur-
gence of Islam as many Egyptians considered the defeat to be God’s
punishment for a nation that had deviated from the true path of reli-
gion. Political pressure to introduce the sharia increased and Nasser
decided to make religion a national theme, something which was con-
tinued under Sadat (1970-1981) and is still today under Mubarak (1981-
present).
Upon taking office in 1970, Sadat released many members of the
Muslim Brotherhood from prison and in 1971 he was behind the adop-
tion of a new constitution that turned the principles of the sharia into
‘a’ major source of legislation and Islam into the religion of the state.
By a constitutional amendment in 1980 the principles of the sharia
were elevated to the status of being ‘the’ major source of legislation.
Turning to the West as well, Sadat had to balance the demands of the
international community with growing domestic pressure to introduce
sharia in other parts of Egypt’s legal system. Walking this tight rope,
Sadat signed many international treaties, such as CEDAW and ICCPR,
but included reservations to ensure that the human rights provisions
would not violate the sharia.
Pre-existing legislation was not affected by the prominent place now
assigned to sharia, as the Supreme Constitutional Court ruled in 1984
that for the sake of legal certainty only legislation enacted after the
1980 amendment needed to be in accordance with the principles of
sharia. All legislation enacted before 1980 was unaffected by the new
constitution. This was especially important in the field of civil and com-
mercial law as the widely applied legal provisions on charging rent on
loans were not affected by the Islamic prohibition of usury.
The Supreme Constitutional Court has ruled that new legislation can-
not contradict those rules of sharia whose origin and interpretation are
definitive. Other rules of sharia, however, are open to independent rea-
soning (ijtihad). Through this ruling, the Court has paved the way for
innovative legislation that surpasses the doctrines of the four schools of
(Sunni) law. An example of such legislative reform based on sharia is
the khul’ law of 2000, which was ruled constitutional by the Supreme
Constitutional Court.
The court also ruled that it is the only court allowed to rule on (in)
compatibility of Egyptian legislation with the sharia. Interestingly, most
cases that are brought to its attention concern matters of personal sta-
tus. In other fields of law, there is apparently little pressure to introduce
sharia. Seemingly, sharia continues to merely apply to personal status
84 MAURITS BERGER AND NADIA SONNEVELD

issues. The introduction of the principles of the sharia being the most
important source of legislation, the growing influence of Islam in
Egyptian society, and extremist Muslim violence, particularly in the
1990s, do not seem to have changed this.
On the basis of these developments, one can conclude that in Egypt’s
legal system a form of compromise has been found between sharia and
Western law. This does not mean that a new system of laws has ap-
peared. The critical element appears to be that national law and legisla-
tion must be authentic, and in the eyes of many Egyptians this means
that it must be Islamic. Until now, one finds introduction of nominal
authentic Islamic legal principles only in personal status law; all other
legislation is considered Islamic by virtue of not contradicting princi-
ples of sharia. Whether authentic or symbolic, Egypt mostly uses sharia
for adapting legislation to current and new situations, in part because
of international pressure to adhere to international treaties and
conventions.

Notes

1 Maurits Berger is a professor of Islam at the Faculty of Humanities, University of

Leiden. Nadia Sonneveld is a senior researcher on the implementation of Islamic law
in practice affiliated with the School of Oriental and African Studies (SOAS),
University of London, and the Van Vollenhoven Institute, University of Leiden. The
authors wish to thank Dr Baudouin Dupret of the Centre d’Études et Documentation
Economique, Juridique et Sociale (CEDEJ) and the Université Louvain-la-Neuve for
his elaborate comments and suggestions.
2 There are four schools of jurisprudence in Sunni Islam: the Hanafi, Hanbali, Maliki,
and Shafi‘i schools. An example of takhayyur in the Egyptian context is as follows.
Under Islamic law, a woman may seek divorce if she can demonstrate that actions ta-
ken by her husband have resulted in ‘harm’ (darar). Within the Hanafi school, the
Islamic school of jurisprudence relied on in Egypt, darar includes physical and finan-
cial harm, but not psychological distress or harm. The Maliki school of thought, in
contrast, interprets darar as physical, economic, or mental harm, and as such permits
the judge to accept divorce on any of these grounds (cf. Vikør 2005: 314). Were
Egyptian Islamic scholars to interpret harm in the latter manner (i.e. along the lines
of the Maliki school), this would constitute takhayyur, or an incorporation of legal in-
terpretation outside of Egypt’s own (Hanafi) school of jurisprudence.
3 The term mufti can have multiple meanings. In general, it translates as ‘official inter-
preter of Islamic law’, but in the Egyptian context state mufti refers to the position
held by the highest, or supreme, advisor on Islamic matters to the state, also known
as the ‘grand mufti’.
4 Salafiya or Salafism (literally ‘predecessors’ or ‘ancestors’) was a very liberal form of
Islam that turned into an ultra-conservative movement a century later, among other
things because of its connection to Wahhabism.
5 Controversy arose, for example, over an article that deemed polygamy without the
first wife’s consent as harmful, and which went so far as to provide the first wife with
a right to petition the court for divorce upon the second marriage of the husband.
SHARIA AND NATIONAL LAW IN EGYPT 85

Another article, which gave women with children the right to stay in the matrimonial
home after divorce, enraged men, who facing Cairo’s difficult housing market, feared
that they would be thrown out of their houses. Disagreement also arose over a provi-
sion stipulating that women remain entitled to maintenance (nafaqa) even if they
work without spousal consent (Fawzy 2004: 35-36).
6 The Supreme Constitutional Court’s ruling concerning the unconstitutionality of the
1979 Law on personal status should not be interpreted as the court generally taking
an anti-women stance. Having created a furore in Egyptian society in January 2000,
the same court ruled in November 2000 that women should be given the right to tra-
vel without the consent of the husband, and in December 2002, it declared that the
highly controversial right of women to unilateral divorce (khul‘) was in accordance
with the constitution. According to Arabi, the commitment of the Supreme
Constitutional Court ‘to democratic values and constitutional principles ought to be
emphasised’ (2002: 353).
7 A process that has been labelled ‘post-Islamism’ (Bayat 2007).
8 For example, in the case where a husband married a second wife against the will of
the first wife, the first wife did not have the automatic right of divorce, as was the
case in the 1979 Jihan Law. But, under the 1985 law a woman had to apply to the
court to determine whether the second marriage had caused the first wife sufficient
harm to warrant the dissolution of the marriage.
9 An example is the introduction of payment of compensation (mut‘a) in cases where a
woman has been divorced against her will and without any cause on her part (see
also 2.6 below).
10 For instance, individuals no longer have the right to accuse a third party of apostasy
in order to have him or her divorced; this has become the prerogative of the public
prosecutor. It explains why an Egyptian court rejected such a divorce case, raised
against the feminist writer Nawal el Saadawi in 2001 on grounds that the public pro-
secutor had not filed the case. See Women Living Under Muslim Laws, ‘Egypt: Court
rejects Saadawi forcible divorce case’, http://www.wluml.org/node/638, dated, 31 July
2001.
11 It must be noted that al-Gebali’s appointment to the SCC was not without contro-
versy. As a member of the National Council for Women (a ‘governmental NGO’
headed by the wife of the president, Suzan Mubarak), many have criticised her for
being too close to the government.
12 It must be noted that this new way of introducing personal status reform does not
tell anything about the acceptance and practice of such reform among the masses. In
fact, much personal status reform was still very controversial (Sonneveld 2009).
13 The Christian laws are those of the Coptic-Orthodox, Greek-Orthodox, Syrian-
Orthodox, Armenian-Orthodox, Catholic and Protestant denominations. The Jewish
laws are those of the Rabbinic and Karaite sects.
14 The dower is to be distinguished from the dowry (money or goods given by the bride
and/or her family to the groom and/or his family).

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3 Sharia and national law in
Morocco

Léon Buskens1

Abstract

Islamic law has taken a drastically different place in the legal sys-
tem of Morocco in the course of the twentieth century. The pro-
tectorate rule of France and Spain, between 1912 and 1956, was a
turning point. Until then, Islamic law was, at least ideally, the law
of the state, although in practice the decrees of the sultan and lo-
cal customs also had considerable importance. Colonialism im-
plied the creation of a dual legal system, formalisation of Islamic
and customary law, and large scale import of European legal
norms. After independence, this system of legal pluralism was
gradually replaced by a unified legal system based on the French
legal model. Nowadays, Islamic norms are mainly to be found in
the law of family and inheritance, codified in the Mudawwana; in
limited parts of the law of evidence; and in some areas of the law
on immovable property. Although in this process of state forma-
tion Islamic norms have been marginalised in substantive terms,
they have recently become very important in the political domain.
The king uses Islam to legitimise his rule, while islamist opposi-
tion movements refer to sharia as a way to criticise the regime in
power. In present-day Morocco, opposing groups engage in pub-
lic debates in which they invoke their particular understandings
of Islam, human rights, and civil society.
Table of contents
Introduction 91
3.1 The period until 1920. Attempts at reform and loss of
independence 92
Islamic law as scholars’ law 92
European expansion 94
Creation of the protectorate 95
3.2 The period from 1920 until 1965. Colonial rule as the
foundation of a modern state 96
Colonial legal pluralism 96
New forms for legal norms 97
Opposing Arabs and Berbers 98
Islamic reformism and nationalism 99
Independence and codification 100
3.3 The period from 1965 until 1985. Authoritarian rule and
the creation of a unified legal system 101
Authoritarian rule and contestation 102
Unification of the legal system 103
3.4 The period from 1985 until the present. Human rights as
an instrument of control and criticism 104
Hesitant family law reforms 105
A new family law code 106
Control of the public sphere 110
3.5 Constitutional law 111
3.6 Family and inheritance law 113
Marriage 114
Divorce 116
Descent and relations between parents and children 119
Inheritance law 120
Judicial practice 121
3.7 Criminal law 122
3.8 Other areas of law, particularly commercial law 124
3.9 International conventions and human rights obligations 125
3.10 Conclusions 130

Notes 134
Bibliography 135
SHARIA AND NATIONAL LAW IN MOROCCO 91

The Kingdom of Morocco gained independence in 1956. The country counts

over 33 million inhabitants and has a surface area of 446,550 square
kilometres – roughly the size of California – not including the area mass of
the disputed territory of the former Spanish Sahara. A considerable part of
the Moroccan population has Berber ancestors with Arabic, sub-Saharan,
and European influences. Distinguishing between Arabs and Berbers on a
racial basis is impossible, yet the distinction has begun to gain importance as
an ethnic phenomenon. The official language is Arabic, but Berber languages
are taught at school on a limited scale. Approximately half of the population
mainly uses a Berber language in daily life, while the other half speaks
variants of Moroccan Arabic. The French language is used in trade and
public administration. Almost the entire population is Muslim (98.7%),
while there are small Christian (1.1%) and Jewish (0.2%) minorities.

(Source: Bartleby 2010).

Introduction

For more than a thousand years, Morocco has had a central state ad-
ministration of some form.2 Many Moroccans consider the origin of the
present Islamic nation to lie in the eighth century, with the establish-
ment of the first Muslim dynasty of the Idrisids. The present contribu-
tion provides a brief historical overview of the coming into being of the
modern Moroccan legal system and an analysis of the role of Islamic
norms in the development of this system. This contribution focuses on
the substantive law of Morocco rather than actual legal practice.3
Because the present-day legal system has been so heavily influenced by
French law, the author has chosen not to provide information about the
legal system of the former Spanish zone.4
The division of periods complies with the general analytical frame-
work of this book. For every period the author analyses the continually
shifting configuration of three normative domains: state law, Islamic
law, and local customs (cf. Buskens 2000). In the period between 1800
and 1920 Moroccan rulers and scholars attempted to reform the state
and its law. Meanwhile, Morocco became more entangled in the web of
European imperialism, resulting in the establishment of French and
Spanish protectorates in 1912. From 1920 until the early 1960s, the
character of the state changed fundamentally, with an emphasis on a
new, more powerful central authority and demarcated boundaries. The
government introduced modern legislation as an instrument with
which to rule this state. During the colonial period the authorities sti-
mulated legal pluralism. Subsequently, from 1961 until the late 1980s,
King Hassan II developed his own vision of a modern state. His
92 LÉON BUSKENS

despotism led to a strong centralisation of the administration, denial of

legal pluralism, and serious human rights violations. During the last
decade of King Hassan II’s rule and continuing into the present reign
of his son Mohammed VI (from 1999), the government has shown
more attention for human rights in combination with neo-liberal poli-
tics, but the interpretations of these norms have varied considerably.

3.1 The period until 1920

Attempts at reform and loss of independence

Moroccan society underwent several drastic changes in the nineteenth

and the beginning of the twentieth century, which culminated in the
formation of a strong central authority. In the decades around 1800, the
sultans Sidi Muhammad III (1757-1790) and Mawlay Sulayman (1792-
1822) attempted to reform understandings of Islam, law, economy, and
the state system. A period followed in which the central authority faced
difficulty in maintaining its power, particularly in the face of a declining
economy related to growing European imports. Sultan al-Hasan I (1873-
1894) succeeded in considerably expanding the territory over which the
central authority (the makhzan) exercised effective control.

Islamic law as scholars’ law

Available literature on Morocco presents the image of a traditional
Islamic legal system during the second half of the nineteenth century.
The state system was a mixture of administrative centrally-driven law,
Islamic law, and customary law. Authoritative legal scholars formulated
Islamic legal norms in accordance with their own visions of sharia.
Some scholars worked as Islamic judges (qadis) in the name of the sul-
tan. Simultaneously, sultans proclaimed legal rules through decrees
called ‘dahirs’. Local representatives of the central authority, such as gov-
ernors, also offered a form of administrative justice.
In areas beyond the control of the central authority (the makhzan),
areas often referred to as ‘the area of rebellion’ or ‘dissidence’ (bilad al-
siba), the population acknowledged for the most part the leadership of
the sultan as ‘amir al-mu’minin’, which meant ‘the leader of the com-
munity of believers’.5 Recognition of his role as a leader did not, how-
ever, result in tax collection or the acceptance of his legal norms. In
large parts of Morocco, the population lived according to the norms of
local custom, applied by community councils called jama`as. In some
regions these councils appointed judges, who judged according to
Islamic norms. Although scholars criticised these local customs in their
writings, they simultaneously searched for practical solutions for the
SHARIA AND NATIONAL LAW IN MOROCCO 93

problems of everyday life. The many collections of their legal opinions

on particular issues (fatwas) offer valuable insight into their attempts to
accommodate Islamic law and local practices.
As in most pre-modern Muslim societies, the treatises of the legal
scholars (the fiqh books), were the main sources for Islamic norms. In
Morocco, the legal scholars almost exclusively followed the doctrine of
the Maliki school, as formulated by the Egyptian scholar Khalil bin
Ishaq al-Jundi (died 1365) in his Mukhtasar, a concise overview intended
for memorisation. Generation after generation of Moroccan scholars
added their explanations to this compendium in order to render it intel-
ligible to their students. Many commentaries circulated in handwriting
among scholars and legal practicioners. Furthermore, scholars copied,
on a large scale, manuscripts about specialised legal questions, compila-
tions of fatwas, and answers from authoritative predecessors to ques-
tions on concrete legal issues. This responsa-literature fulfilled an impor-
tant role in the application of Islamic law in practice, and contributed
greatly to the further development of the legal doctrine.
In the nineteenth century, the city of Fez was the intellectual and po-
litical centre of the country. Many important scholars taught at the mos-
que university al-Qarawiyyin in Fez (cf. Berque 1949). Despite rivalries
among scholars from different regions, the legal scholars (fuqaha') from
Fez were in principle considered to be the most authoritative. And, for
many students, studying at the Qarawiyyin University was the highest
goal. In the works of the school of Fez, many references can be found
to the rituals and customs of the bourgeoisie of the city, but scholars
also attempted to construct rules that reached beyond these local tradi-
tions so as to represent a more abstract, general custom. The scholars
of Fez moreover legitimised to a certain degree the sultan’s regime.
Their recognition was an important condition for the effectiveness of
the central authority. Together with treatises of authoritative scholars
from other parts of Morocco, the legal treatises of the school of Fez
formed a sort of proto-national tradition of the Maliki law.
The traditional form of jurisprudence sanctioned a form of Islamic
orthodoxy in which recognition of the special position of descendants of
the prophet Mohammed (the shurafa'), the veneration of ‘saints’, and al-
legiance to mystic orders played an important role. These conceptions
contributed to the legitimacy of the political system, in which the sultan
as a descendant of the Prophet was imputed with miraculous gifts and
blessings, or baraka (cf. Munson 1993). Many legal scholars were also
members of mystic orders and wrote treatises about the orthodoxy of
Sufism. The connection between Maghribi Malikism and traditional
orthodoxy was embodied in the work of the nineteenth century scholar
Al-Mahdi al-Wazzani, who compiled an authoritative collection of fat-
was, and also wrote a treatise in which he defended the traditional
94 LÉON BUSKENS

veneration of the saints against criticism inspired by the Egyptian refor-

mer Muhammad Abduh (cf. Berque 1949). This polemic shows that
the Maliki tradition was not static and isolated, but instead dynamic
and responsive to foreign developments.
One of the manifestations of these internal dynamics were the at-
tempts of several Moroccan scholars and sultans to reform Islamic
thinking from the second half of the eighteenth century onwards.
Sultan Mawlay Sulayman, for instance, sent his son Ibrahim to Arabia
in 1812 to acquire knowledge about Wahhabism (Abun-Nasr 1963: 94;
El Mansour 1990: 137-143). Contact with the Wahhabis contributed to
the sultan’s disapproval of visiting the graves of saints and other folk
practices. His father, Sidi Muhammad II, had already started with at-
tempts to reform the study of Islamic law, for instance by contesting
the dominance of Khalil’s Mukhtasar. He also demonstrated great inter-
est in Hanbalism, the understanding of God’s will revived by the
Wahhabis. Reformist ideas from Egypt became known among a small
circle of students and scholars in Fez in the second half of the nine-
teenth century (Abun-Nasr 1963). Calls for a puritan interpretation of
orthodoxy were also perceived in the works of traditional scholars such
as Ma’ al-Aynayn. These developments fit within more general tenden-
cies of puritanism and reform that characterised many Muslim societies
in the late eighteenth century (cf. Voll 1994; Peters 1980).

European expansion
In economic and political terms, Morocco was increasingly pulled into
the European sphere of influence. The country was surrounded by areas
controlled by Europeans, such as French Algeria and the Spanish and
French territories in the Sahara. From 1830, France protected its inter-
ests on the Eastern border with Algeria. Spain occupied the Northern
city of Tétouan and enforced an unfavourable peace treaty upon the cen-
tral authority, or the makhzan, in 1860. Likewise, in 1907, France found
a pretension to occupy the area surrounding Casablanca. In response to
these developments, some Moroccan scholars and political leaders, in-
cluding Sultan `Abd al-Hafiz, called for a holy war (jihad) against the
French who threatened the frontiers of Morocco (Burke 1976).
From the second half of the nineteenth century and the early part of
the twentieth century, European law began to spread in earnest through
European consulates in the form of consular courts. In response to the
growing rivalry amongst European countries competing for influence,
Morocco and several other European countries and the United States
concluded the treaty of Madrid in 1880. Among other things, they
reached a consensus about the doctrine of allégeance perpétuelle, which
formally clarified that in principle, Moroccans would always remain
SHARIA AND NATIONAL LAW IN MOROCCO 95

Moroccan citizens, regardless of which foreign entity ruled them or

which other nationality they would acquire (cf. Guiho 1961: 91-97). This
notion remains until today one of the foundations of the Moroccan law
of nationality, which creates concern for Moroccan immigrants who
wish to obtain citizenship of the European countries in which they have
settled.
In 1910, attempts at reform resulted in two proposals for a constitu-
tion that were influenced by political developments in Iran, the
Ottoman Empire, and Egypt. The first proposal advocated, among other
things, a legal system in accordance with the sharia. Both proposals
contained the institution of a parliament. At that time, few people ap-
peared to be interested in these ideas coming from the East, but later
nationalist activists used these documents in their struggle for indepen-
dence as proof for the Moroccan constitutional tradition (Pennell 2000:
143-145).

Creation of the protectorate

In 1912, France and Spain had won the bid against other contesters
such as Germany and Great Britain, obtaining the authority to support
the sultan in modernising the country. One of the justifications for
creating the protectorate was the necessity to address the vast foreign
debts that the Moroccan sultan had accumulated through extensive
European loans. The Spanish gained control of the Northern part and
an enclave in the South; the rest of the country was placed under the
authority of France, with the city of Tangier functioning as an interna-
tional zone under the joint administration of several foreign nations.
Article 1 of the 1912 Treaty of Fez established that the sultan and the
French agreed to legal reform, according to what the French govern-
ment deemed necessary. With the establishment of the protectorate, the
power of the central authority would prove to be greatly strengthened.
The character of the legal system would also undergo a fundamental
transformation in the decades to come. The French created a dualistic
system whereby indigenous law, including Islamic, Jewish, administra-
tive, and customary law functioned in parallel with modern law based
on a European model. French scholars and administrators immediately
began with legislative activities that resulted in 1913 in a code of con-
tracts (Dahir formant codes des obligations et des contrats). This code re-
mains the cornerstone of Moroccan civil law.
The First World War slowed down French reform plans and ob-
structed military actions to submit the jihad-waging rural areas to the
new mahkzan. The French not only needed their own soldiers to fight
the Germans in Europe, but soon began to enlist men from the colo-
nies, among them Moroccans, to join their forces.6 Only from 1920
96 LÉON BUSKENS

onwards were the French able to seriously resume work on establishing

a new Moroccan state and a modern legal system. After the newly
gained independence in 1956, the protectorate regime created by the
French would form the basis of the present Moroccan legal system.

3.2 The period from 1920 until 1965

Colonial rule as the foundation of a modern state

The period between 1920 and 1934 was marked by the establishment of
a strong, centrally administered state. The French and Spanish armies
used brutal force to pacify the Berber regions in the South, the Middle-
Atlas, and the North. The most famous episode from this battle of con-
quest was the Rif War (1921-1926). The Spanish protectorate govern-
ment eventually succeeded in subduing the jihad of the inhabitants of
the Northern mountainous region led by reformist scholar Muhammad
bin Abd al-Karim al-Khattabi with significant help from the French
army. Both parties suffered great losses and committed atrocities. The
Spanish army even resorted to the use of poisonous gas bombs deliv-
ered to them by the German government in a desperate attempt to win
the war of the guerrillas. Traces of this war can still be found in the
Rifian landscape today.
With the gradual pacification of the Moroccan territory, the central
government claimed a monopoly in the development and promulgation
of legal norms in the new state structure. A norm only had the status of
a legal rule when the central government had recognised it as such and
formally promulgated it. In this process Islamic law and customs be-
came incorporated into the formal framework of state law.

Colonial legal pluralism

The ‘framing’ of various normative domains in a state context implied
an official recognition of a situation of legal pluralism, which until then
the Islamic scholars had only grudgingly accepted through the accom-
modation of fiqh to local customs in areas where they could not do
otherwise. Colonial rule divided the national legal system into two large
domains, namely the Sharifian and the French or Spanish administra-
tion of justice.
The Sharifian administration of justice, as it was coined by the
French to set it apart from European-derived law and to connote the
law’s link to the sultan, himself a descendent of the Prophet
Mohammed (a sharif), was further subdivided into four areas of law:
– Islamic law administered by Islamic judges according to rules of
Maliki fiqh;
SHARIA AND NATIONAL LAW IN MOROCCO 97

– Makhzan-law as a continuation of the pre-protectorate administra-

tion of justice by government officials according to the rules pro-
mulgated by the sultan;
– Customary law for the officially recognised Berber regions; and
– Jewish law applied by rabbinical courts.

The competence of the courts depended on the religious and ethnic

backgrounds of the parties involved and the nature of the conflict. The
Sharifian administration of justice took place under supervision, or
contrôle, of French and Spanish officials who, depending on the region,
had either a civil or a military status.
Europeans in principle fell under the French or Spanish system. The
consular administration of justice was abandoned by all countries in the
course of the protectorate, with the exception of the United States. The
French and Spanish administration of justice was inspired by the legis-
lation in France and Spain. Formally, however, this system was also
Moroccan: administration of justice took place in Moroccan courts in
the name of the sultan and in accordance with Moroccan law. While co-
lonial authors often spoke of French and Spanish law, Moroccan scho-
lars used the term ‘modern’ to refer to this part of the law (cf. Essaîd
1992: 271-272).7
Islamic law obtained a well-defined place as part of Sharifian law
within the protectorate system. Islamic judges took care of adminis-
tration of justice mainly in family and inheritance matters for
Muslims and for immovable property rights that were not registered
and with which no French party was involved. French officials super-
vised the work of the judges, which was formalised according to
French ‘rational’ norms. In practice, this meant that legal procedure
was structured according to the French model, which, for example,
introduced appeal requirements and the creation of archives to keep
court records.

New forms for legal norms

The interference of French control also resulted in changes in the sub-
stance of Islamic law. The way in which the French formulated their le-
gal texts created new genres of legal writing, such as codification
(Buskens 1993). Since the conquest of Algeria in 1830, French scholars
had been studying Maliki law as it had developed in the Maghrib
(Henry & Balique 1979). They published important editions and anno-
tated translations of authoritative legal texts and documents recording
Moroccan legal practice. These writings, authored by foreign scholars,
led to a summarising and restructuring of the legal tradition itself as in
their task of compilation and annotation scholars necessarily showed
98 LÉON BUSKENS

preference for certain writings and views of Moroccan scholars over

others, thus creating a colonial vulgate.8
In the incorporation of customary law in the protectorate legal system
the same tendencies can be discerned as for Islamic law: control, forma-
lisation, and standardisation. In a 1914 dahir, the sultan, instigated by
the French, had already formulated the principle that Berber population
groups should have their own administration of justice based on local
customs. This principle was further elaborated in the notorious dahir
berbère of 1930 (Lafuente 1999). According to this decree, large groups
of the Moroccan population no longer fell under Islamic law, but were
instead subjected to their ‘own’ Berber legal norms. Administration of
justice took place through local community councils under the supervi-
sion of French officers. This control implied that French researchers
and administrators described and systematised the legal norms and the
judgments of the councils in impressive overviews, such as Aspinion
(1946) on the customary law of the Zayyan tribe and Marcy (1949) on
the Zemmour. In the Rif region, the Spanish military officer Emilio
Blanco Izaga engaged in similar work with his monumental studies
about the customs of the Aith Waryaghar (Hart 1995).
French administrators and scholars were led in their formalisation of
customs into law by previous experiences in Algeria, notably in the
Berber mountains of Kabylia. The preference of customary law over
Islamic law was a widespread colonial phenomenon that was also promi-
nent, for instance, in the Dutch legal policies pursued in Indonesia. In
the Netherlands during this same period, scholars such as Christiaan
Snouck Hurgronje and Cornelis van Vollenhoven were advocating for a
transformation from custom (adat) to customary law (adat law) in order
to satisfy the sense of justice of the native population (cf. Burns 2004).
Scholars from a number of European nations maintained extensive con-
tact, and as such shared experiences and their visions of colonial rule.
Snouck Hurgronje, for example, in addition to being a prominent advi-
sor and scholar in Indonesian affairs, was also appointed as an honor-
ary advisor to the French protectorate administration in Morocco.

Opposing Arabs and Berbers

Some European administrators and scholars viewed colonial legal poli-
tics as an instrument of recognition of ‘native cultures’ and as a means
of advancement for the ‘natives’. In the eyes of the French, the Berbers
were merely superficially islamised and actually possessed European ra-
cial and cultural roots. From their perspective, in the distant past, at the
time of the church father Augustin (of Berber descent), they had been
Christians. Some colonial officials cherished the hope that the Berbers
could once again be converted to Catholicism and become allies in the
SHARIA AND NATIONAL LAW IN MOROCCO 99

fight against Islamic-Arab invaders, who had occupied their country at a

later time.
Many progressive Maghribis considered the confrontation between
Islamic law and local custom to be artificial and aimed at creating dis-
cord. Laying down both systems of norms in separate and contradictory
colonial vulgates and regulations was an expression of a divide-and-rule
policy aimed at the continuation of European-Christian dominance. The
dahir berbère was by far the most important symbol of the colonials’ di-
visive policies, and as such the primary target of opposition for the
young, educated middle class. Outside of Morocco, as far as the Dutch
Indies, Muslim activists were also protesting on a large scale against
what they, too, perceived as an anti-Islamic legal policy being imple-
mented by European rulers.

Islamic reformism and nationalism

These young Moroccan townspeople presented a programme that pro-
moted Islamic reformism and nationalism as an alternative to
European dominance. Their reformism implied a rejection of tradi-
tional orthodoxy, in which the veneration of saints and a Moroccan
form of Malikism, with respect for local customs, were important. The
French administrators had canonised this traditional orthodoxy in their
endeavours to rule Morocco by means of indirect rule, relying on the
elite of makhzan-officials and Islamic scholars. For the reformists, the
traditional orthodoxy was a form of superstition and control, as they
considered many of the loyal scholars to be collaborators.
Moroccan reformism was part of an international revival movement
that intended to purify Islam by returning to the original Islam of the
pious early Muslims (salaf), which in this particular context meant
breaking away from many customs introduced in the orthodox Islam in
the course of the centuries. For them, thinking in terms of schools of
law was less important. The Salafiyya movement initially had many sup-
porters in Egypt, Syria, and Lebanon; it later spread throughout the
Muslim world. The reform movement of Muhammad bin Abd al-Karim
al-Khattabi, the hero of the Rif War, was a precursor to this Moroccan
form of puritanism. Reformers felt connected with Muslims all over the
world, and were part of the revival movements that developed from the
late nineteenth century. Exiled leaders of the Moroccan reformists
found shelter in Egypt, where they met activists from other parts of the
Muslim world who shared their views as well as their plans for political
action. Colonial regimes demonstrated great concern over Pan-
Islamism, which they considered to be a possible source of worldwide
rebellions and conspiracies of Muslim populations against their
Christian rulers.
100 LÉON BUSKENS

For Moroccan intellectuals, Islamic reformism and internationalism

were inextricably linked with nationalism. They wanted to be free from
the reigns of French and Spanish occupiers and to unite the entire re-
gion into one nation. Their plan was that this independent state would
be ruled by the activists according to the principles of pure Islam as for-
mulated by salafiyya thinkers such as the young religious scholar Allal
al-Fasi and other prominent members of the independence movement.

Independence and codification

In 1956 resistance against colonial rule led to independence for a re-
united Morocco, meaning both the Spanish and the French protecto-
rates fell once again under the same borders and under the control of
the makhzan. Sultan Muhammad V had played an increasingly impor-
tant role in the nationalistic movement from the time of the Second
World War and came to symbolise national unity for all parties. He
adopted the title of ‘king’ instead of ‘sultan’ and quickly placed himself
at the head of the state. Nationalistic reformers led by Allal al-Fasi
hoped for an entirely revised legal system based on a new interpretation
of sharia. They were, however, ultimately disappointed as genuine re-
form remained limited to the abolition of customary law in the Berber
regions and a codification of family law in the 1958 ‘Code of personal
status’ (the Mudawwanat al-ahwal al-shakhsiyya).
The Mudawwana (personal status code) was a symbol of regained na-
tional unity: one corpus of legal rules was from now on applicable to all
Muslims living in Morocco. In substance the law remained close to the
traditional Maliki doctrine, to the extent that Lapanne-Joinville charac-
terised it as ‘une sorte de loi-cadre à rebours’ (Lapanne-Joinville 1959:
101). In the choices between different legal scholarly opinions, the legis-
lator was guided by reformist ideals, such as the protection of weaker
parties, women and children, against possible abuse by men of their
God-given privileges. Although the Tunisian family law of 1957, the
Majalla, had served as a source of inspiration, the Moroccan legislator
did not consider radical reforms to be desirable nor possible. For the
Jewish minority in Morocco, family law was not codified, but the classi-
cal compilations of the Jewish legal scholars remained in force.9
The legal system of the new Morocco was in many ways a continua-
tion of the colonial system as developed by the French. The codifica-
tions of criminal law and criminal procedure in 1962 and 1959, respec-
tively, contained virtually no references to classical Islamic law, but in-
stead drew inspiration from French law.
The new government continued the formation of a modern nation
state through the submission of ‘rebellious’ regions, the centralisation
of the government, and the establishment of a monopoly on the
SHARIA AND NATIONAL LAW IN MOROCCO 101

development of legal norms. On this basis, the makhzan proceeded

with a legal policy that was primarily focussed on unification and mod-
ernisation. Islamisation of the law was largely an ideological preoccupa-
tion of a group of nationalist reformists. For the actual rulers islamisa-
tion of the law was merely a symbol of political legitimacy to which they
paid lip service through the codification of the Mudawwana. State law
was of prime importance, and allowed only very limited space to
Islamic norms, while denying or even resisting the existence of local
customs.

3.3 The period from 1965 until 1985

Authoritarian rule and the creation of a unified legal system

After the premature death of King Muhammad V in 1961, his son

Hassan took over the throne. He considered it his task to transform
Morocco into a modern state, which in the first place meant strengthen-
ing the central authority of the king. He used the law as one of the in-
struments at his disposal for control and the continuation of the reign-
ing `Alawi dynasty.
In 1962 King Hassan II invited the Moroccan population to approve
of the constitution designed by him by means of a referendum, the first
one in Moroccan history. The constitution was strongly inspired by
French constitutional law, as King Hassan had studied law in France. At
first sight, the constitution formed the basis for a democratic regime:
Morocco was set up as a parliamentary democracy with several parties.
Islam occupied a limited position as the state religion; there was no
further mention of Islamic law in the entire constitution.
The constitution did, however, grant a great deal of power to the king.
Article 19, in which the king was given the task of acting as the ‘com-
mander of the faithful’ (amir al-mu’minin) was of particular importance.
King Hassan was to shape this institution according to his own particu-
lar views during his rule, making it a truly invented tradition. In his
opinion, Islamic leadership consisted of having complete authority in
all matters relating to Islam, including the interpretation of Islamic law.
For Hassan, the constitution was an instrument that allowed him to im-
pose an autocratic regime. He repeatedly dissolved the parliament and
proclaimed a state of emergency, and also freely promulgated several
new versions of the constitution. In practice, King Hassan replaced the
democratic principles embedded in the constitution with an authoritar-
ian rule.
102 LÉON BUSKENS

Authoritarian rule and contestation

The first twenty-five years of King Hassan’s rule are known as ‘the years
of lead’. They were characterised by serious violations of human rights
and elimination of political adversaries. In the 1960s the progressive
elements of the Istiqlal movement, which had formed a political party
of their own soon after independence, expressed strong criticism of the
king. In 1964, King Hassan reacted by having their exiled leader Mehdi
Ben Barka kidnapped in broad daylight in Paris. The former crown
prince's teacher of mathematics, Ben Barka, quite literally disappeared
without a trace. During the years to come many activists would share
this fate. In addition to outright intimidation tactics, Hassan regulated
internal politics by controlling the election of members of parliament as
he pleased. Resistance against him led members of the army to insti-
gate rebellions in 1971 and 1973, which included assassination attempts
on his life. Miraculously, Hassan managed to escape death every time,
only serving to strengthen the belief some had that the king possessed
God-given power.
At the beginning of the 1970s the kingship was no longer the symbol
of national unity it had been during the resistance against the colonials
in the 1950s. In an attempt to create a new rallying point of national
unity, Hassan called on his subjects to join in a peaceful march in 1975
in order to incorporate the Spanish Sahara in the Moroccan territory.
The grand Moroccan ideal had been important for many in the struggle
for independence and was still able to enthuse a considerable part of
the population in the 1970s.
Moreover, for many rural poor, the march to the Sahara contained a
promise of a better future. Prosperity had remained a privilege for a
small elite on whom Hassan relied for the enforcement of his regime.
The nationalisation of the Moroccan economy at the expense of the in-
terests of the former colonists had been especially advantageous for the
king and his clients. The vast majority of the population, both in rapidly
growing cities and in the countryside, continued to live in great poverty.
For many, emigration to Western Europe was the only way out. Unrest
periodically manifested itself in the cities in the form of violent protests
against rising food prices, one of the last large-scale outbreaks being
‘the bread riots’ of January 1984.
From the late 1970s onwards an increasing part of the population
turned to political forms of Islam to express its feelings of discontent
(Zeghal 2005). King Hassan saw the Iranian Revolution of 1979 as a
serious threat to his regime. He harshly persecuted his islamist critics
and condemned Imam Khomeini's views in the strongest terms. His
Minister of Religious Affairs propagated a moderate form of traditional
orthodoxy, which presented Malikism as an age-old tradition in
SHARIA AND NATIONAL LAW IN MOROCCO 103

Morocco and articulated Islam as the way of ‘the proper middle’. This
policy focus had almost no impact on the development of substantive
Islamic law. In fact, since the codification of the Mudawwana in the late
1950s, there had been numerous pleas for reform of Islamic family law,
all of which remained unheaded, despite ever more vocal demands for
reform from the 1980s onwards. The king rightly understood that it
would be extremely difficult for him to reform the vulnerable symbol of
Islamic identity and national unity to everyone’s satisfaction.
Modernists, reformists, conservatives, and islamists all held strongly de-
viating conceptions of the substance of an ideal Islamic family law (cf.
Buskens 1999).

Unification of the legal system

Some of the most important events for the development of the
Moroccan legal system in this period were the Arabisation,
Moroccanisation, and unification of the law. A complete unification of
the law was brought about by the law of 26 January 1965, which came
into force on 1 January 1966 (Azziman 1986). It ended the division be-
tween Makhzan and ‘modern’ (previously French, Spanish, and interna-
tional/Tangiers) legal rules. The Islamic courts were also integrated into
the same unified system. Unification of the law implied the choice for
‘modern’ law as developed in the former French protectorate. The
norms of the Spanish and international zone of Tangiers were abol-
ished. Islamic law and Jewish law only kept their place in family affairs.
Islamic norms furthermore regulated the transfer of rights to non-regis-
tered immovable property, and the administration of religious institu-
tions (wafqs or habus).
The law of 26 January 1965 also determined that only persons of
Moroccan nationality could act as judges, which meant the end of the
work of over one hundred judges of French and Spanish nationality.
The administration of justice was from that moment forward to take
place entirely in Arabic. A large amount of laws and regulations there-
fore had to be translated into Arabic. The organisation of the judicial
system remained strongly inspired by the 1913 Code of Civil Procedure
promulgated by the French.
In practice, the system of 1965 proved to be strenuous and costly.
Hence, new laws on the organisation of the courts and legal procedure
were introduced in 1974, bringing about a drastic reform of the legal
system. These laws still form the basis for the present judicial adminis-
tration. The judiciary consists of four layers: ‘jurisdiction communale et
d’arrondissement’ (lowest level local courts); first instance courts;
Courts of Appeal; and a Supreme Court. Once again the influence of
French legal models on these reforms was considerable.
104 LÉON BUSKENS

The most important development with regard to Islamic law since

the codification of the family law was the promulgation of a new statute
governing professional witnesses who write down documents for all
matters in which Islamic law applies (the `udul, sing. `adl). The institu-
tion of Islamic witnesses has a history of more than a thousand years
in Morocco. Colonial administrators had increased their control over
the `udul by implementing measures such as the creation of archives
and the levying of taxes. The law of 1982 and a ministerial decree of
1983 fully integrated the `udul, and thereby also brought this important
branch of Islamic evidence law into the new legal order (cf. Buskens
1999, 2008).10 Through the incorporation of this classical Islamic insti-
tution, government control was further strengthened. Thus, the govern-
ment affirmed once again that in Morocco Islamic law only functioned
within the context and by the grace of state law.

3.4 The period from 1985 until the present

Human rights as an instrument of control and criticism

The last fourteen years of King Hassan’s 38-year rule were characterised
by cautious changes in the political system. Opposition groups increas-
ingly invoked the concepts of human rights and civil society to voice
their criticisms of the regime (cf. Hegasy 1997; Rollinde 2002; Sater
2007; Touhtou 2008). The sharp attacks on the political system by var-
ious islamist movements were worrisome for the central government
because critics used the very Islamic idiom which the king himself used
to justify his regime (Tozy 1999; Zeghal 2005). The islamists also in-
creasingly called on human rights standards in order to claim their
right to freedom of expression. Pressure from abroad meant that King
Hassan could no longer ignore the growing criticism of his human
rights record. Extremely critical publications appeared in France and,
with the end of the Cold War and less geopolitical interest in Morocco,
the United States also began to exert more pressure on Morocco to re-
spect its human rights obligations. Eventually, the king could no longer
refuse the visit of representatives of Amnesty International.
From the end of the 1980s the Moroccan government made attempts
at solving its economic problems through neo-liberal means, such as
large scale privatisation of the public sector and promotion of foreign
investments. Through steps toward economic liberalisation the king at-
tempted to increase support for his regime among the urban middle
class. Until that point in time, Hassan had largely ruled by relying on
his strong patronage relations with the rural elite. The increasing free-
dom for the media and the intellectual debate stimulated by new poli-
cies on public expression were also aimed at creating legitimacy for the
SHARIA AND NATIONAL LAW IN MOROCCO 105

regime in the eyes of the urban middle class. In 1990, the makhzan for-
mally adopted the discourse of human rights by setting up a national
human rights institution (‘Conseil consultatif des droits de l’Homme’).
Finally, a Minister for Human Rights was appointed in 1993. The fact
that the highly respected professor of law Omar Azziman was prepared
to fulfil this difficult post was a considerable success for King Hassan
II.
The acceptance of the makhzan by a considerable part of the middle
class was also the result of the widespread horror over the savage civil
war in neighbouring Algeria, in which islamist groups played an impor-
tant role. Many Moroccans preferred Hassan’s despotism to the display
of bloody chaos being witnessed over the border. The king continued to
use the Moroccan tradition of Malikism as a means to counter his isla-
mist critics. As part of this strategy, the Ministry of Religious Affairs
published important classics on Islamic law and theology at low prices.
The king also demonstrated his religiosity and particular views on
Islam by inviting obedient scholars to deliver a series of pious speeches
in the palace each year during the fasting month of Ramadan.
Though the state from the early 1990s onwards began to permit the
establishment of non-governmental organisations, it simultaneously
tried to control these initiatives (cf. Hegasy 1997; Sater 2007; Touhtou
2008). Some of these groups specifically targeted the improvement of
women and children’s rights, while others focussed on regional identity
issues, notably in Berber-speaking areas. The makhzan’s evident in-
creased openness on issues of Berber language and culture indicated
that the regime had chosen to no longer associate the Berber issue with
colonial policy and collaboration. Instead of repressing these move-
ments, the king attempted to co-opt the Berber activists. In a royal
speech in 1994 King Hassan recognised the importance of Moroccan
‘dialects’ next to ‘the language of the Qur’an’ (Kratochwil 2002). The
king issued a decree permitting the teaching of these Berber ‘dialects’
at schools (Sater 2007: 141). On a formal political level, the constitu-
tional modifications of 1992 and 1996, which introduced a two-cham-
ber parliamentary system, also suggested new openness and democrati-
sation. King Hassan presented the referenda about these proposed con-
stitutional modifications as bayas, collective oaths of loyalty to his
person, which would legitimise his rule.

Hesitant family law reforms

King Hassan again granted a symbolic role to Islamic family law in the
creation of his new order. In 1992, after many years of debate, the king
was finally prepared to consider a reform of the Mudawwana. He expli-
citly stated, however, that an eventual modification of the law should
106 LÉON BUSKENS

not become a topic of public debate between different political factions.

He used the example of the Algerian civil war as a possible conse-
quence of public confrontation on this matter, thus legitimising his
firm control over the reforms. As it happened, the parliament had been
dissolved due to upcoming elections and the king, according to the con-
stitution, had the power to single-handedly promulgate laws. Hassan ex-
plicitly referred in his speeches to his right to use ijtihad (free legal in-
terpretation) as commander of the faithful. Ultimately, he claimed to
hold the highest authority in the interpretation of Islamic law, and, as
such, promised to protect the interests of his female subjects as a real
father of the nation.
In the end, the legal reform proposals were the result of consulta-
tions of a committee consisting mostly of religious scholars and jurists
appointed by the king himself. Participation of women’s organisations
in these consultations was severely limited. Despite his broad based
public statements beforehand, modifications proclaimed by the king in
September 1993 were extremely modest. The revised articles had little
effect on male privileges concerning marriage, guardianship, polygamy,
and repudiation. The main effect was new administrative procedures,
supervised by judges and professional Islamic witnesses (the `udul), that
made it more difficult for men to abuse their privileges. Rather than
contribute to more equal and progressive relations between men and
women, though, the new more stringent measures seemed to result in
men attempting to escape from their obligations through informal
ways, for example by simply disappearing when wishing to divorce their
wives, instead of repudiating them in an orderly fashion.
In short, the revisions of a limited number of articles of the
Mudawwana appeared to be largely a gesture by the king towards pro-
gressive, and vocal, groups to indicate his political willingness to consid-
er reform. Reform from the king’s perspective meant change that
would not shock the traditional conceptions of Islam and society held
by the majority of the population. A compromise proved to be virtually
unreachable: islamists and orthodox were troubled by every reform,
while the reformers remained disappointed by the lack of genuine
change. In the end, all camps were forced to grudgingly accept the
authority of the commander of the faithful.

A new family law code

According to a decision made by King Hassan, the elections of
November 1997 were to result in what in French was called ‘l’alter-
nance’: the parties that had until then formed the opposition would now
be given the chance to form a government and to rule the country for
several years. This particularly concerned the socialist USFP (Union
SHARIA AND NATIONAL LAW IN MOROCCO 107

Socialiste des Forces Populaires) and the centre-right Istiqlal party.

Furthermore, in these elections the PJD (Parti de la Justice et du
Développement), an islamist party permitted by the king and often re-
ferred to as ‘the king’s islamists’ (‘les islamistes du roi’) obtained twelve
seats in parliament. The new government that started in March 1998
aroused hope for social and political change. The government had am-
bitious ideas for social reforms for women in particular.
Indeed, within a year, in March 1999, the government presented a
grand plan to get women more involved in the development of the
country. Part of it was a drastic reform of family law to promote the
equality between men and women. The expectations increased when
King Hassan died in July 1999 and was succeeded by his eldest son
Mohammed VI. The young king explicitly presented himself as a social
reformer and happily made use of the nickname ‘king of the poor’,
which he quickly acquired after ascending to the throne. He promised
his support for reform plans in favour of the poor and the weak, which
included women and children. With little ceremony he replaced the
loyal collaborators of his father, such as the feared Minister of Interior
Driss Basri, in order to symbolise the break with the old regime in a
manner that would not directly forsake his father.
Supporters of the drastic reforms of family law hoped that the king
would be on their side. They desperately needed his support because
the government plans for radical reform of the Mudawwana had re-
ceived a great deal of fierce condemnation from the side of traditional
orthodox scholars and islamists. The traditionalists also expected sup-
port from the king because of the old ties between the `Alawi dynasty
and the Islamic scholars and also because the former Minister of
Religious Affairs, a faithful ally of King Hassan II, had expressly cho-
sen their side. The clergy felt threatened in their traditional power
concerning the interpretation of Islamic law. Islamists of all sorts,
both those loyal to the king and those supporting revolutionary re-
form, used the debate over family law to find out how much space
the young king would allow them to express their views in public.
The apogee of the confrontation took place on 12 March 2000 in the
form of two protest marches, one in Rabat for and one in Casablanca
against government plans to reform the family law. The number of par-
ticipants was difficult to estimate, but hundreds of thousands of people
were involved. Notably, islamists and traditionalists were able to gather
considerably more people in Casablanca than the progressive groups in
Rabat.
In the course of the year 2000 tensions between the different fac-
tions increased. Each group was convinced of its own interpretation of
Islamic law. There were accusations back and forth of heresy and un-
Moroccan ideas and conduct. The progressive groups were, in the eyes
108 LÉON BUSKENS

of the traditionalists and islamists, lackeys of the West. The reformers,

in turn, portrayed their opponents as ‘Taliban’ and representatives of
Saudi Wahhabism. Their differences appeared to be irreconcilable.
Moroccan migrant communities in Western Europe also engaged in
fierce discussions about the family law. In Morocco itself all factions,
with the exception of the revolutionary islamists, called on the young
king to decide what should happen with the family law. Finally, on 5
March 2001 King Mohammed VI reacted by promising to set up a com-
mittee to formulate a draft for the family law. He officially established
this committee on 27 April 2001. Among its sixteen members, there
were three women. The majority of members were Islamic scholars,
jurists, and judges.
For the time being it appeared that the conservatives and the isla-
mists had gained the upper hand. The debate on family law was waged
almost entirely in Islamic terms. Progressive groups frequently refer-
enced the applicability of universal human, women's, and children’s
rights and the importance of international women’s conferences and
conventions, but they never dared to voice the possibility of viewing
Moroccan family law from a secular perspective.11 By constantly refer-
ring to ijtihad, the modernists placed themselves within the Islamic tra-
dition. The various islamist groups also succeeded in publicly expres-
sing their views on Islam and its role in politics. The public atmosphere
that existed in the newly emerging civil society in the post Hassan II
period offered all sides an opportunity to participate in the political are-
na. This was a big step forward as compared to the repressive regime of
Hassan II (cf. Buskens 2003).
On 16 May 2003 the world was shocked by a series of terrorist at-
tacks in Casablanca. When the inconceivable news came that the cul-
prits were Moroccan, king Mohammed VI reacted sharply against those
who had abused their newfound freedom of expression. He claimed the
right to interpret Islam as commander of the faithful and took strict
measures against islamist activists. The repression was so fierce that it
immediately provoked protests by human rights activists.
Concomitant to its repression of radical forms of political Islam, the
government also offered an alternative view of what it considered ‘real’
Islam to be. With the appointment of a new Minister of Religious
Affairs, historian and novelist Ahmad al-Tawfiq, the king wished to pro-
mote a policy concerning Islam in which an individual experience of re-
ligion was stressed as an antidote to political activism. As with new poli-
cies on Berber language and culture, this signalled that for the govern-
ment mysticism (Sufism) had lost its association with colonial rule and
‘backwardness’. Intellectuals and other members of the urban middle
class had already rediscovered Sufism as an authentic Moroccan under-
standing of a peaceful Islam.
SHARIA AND NATIONAL LAW IN MOROCCO 109

Mohammed VI settled for relatively liberal reforms of the

Mudawwana, which he announced in a speech at the opening of the
new parliamentary year in the fall of 2003. For the first time, an
Islamic family law in Morocco became the subject of a parliamentary
debate. The representatives of the islamist PJD proposed numerous
amendments, but, in the end, both chambers voted unanimously for
the new family law. On 3 February 2004 the king proclaimed the new
Mudawwanat al-usra. With publication in the official government bulle-
tin, the new family law went into effect immediately.
Many reform-minded people were satisfied with the results,
although they considered the new law to only be a first step. They felt
that they were the victors in the debate. Conservatives and islamists
had no choice but to accept the inevitable. The real winner, however,
appeared to be King Mohammed VI. Through his manoeuvring and
an unexpected course of events he had been able to strengthen his
power considerably. He emphasised his right of ijtihad, while simulta-
neously demonstrating himself to be a democrat by allowing a parlia-
mentary debate on the law. He had grounded the contents of the new
law in a liberal interpretation of Islam, linked to notions of progress
and social justice. He emphasised continuity with the previous family
law by presenting the reforms as further elaborations of the reforms
granted by his late father in 1993.12 Although traditional Malikism had
lost substantial ground in favour of modernism, the modifications were
justifiable within the context of traditional salafiyya ideology of the na-
tionalist movement. The new law was, however, an explicit rejection of
puritan views as preached by Wahhabis from present-day Saudi
Arabia.13
As in the first years of the creation of an independent state, during
the reign of his grandfather, Islamic family law proved once again to be
a powerful symbol: King Mohammed VI showed his subjects at home
that he still was in charge of his country and had effectively wielded his
power. At the same time, the new family law was a sign to the outside
world: the young king presented Morocco as a model for all Islamic
countries, a state that wished to propagate a modern moderate Islam.
This message was well received by Morocco’s traditional Western allies
France and the United States. The presidents of both states praised the
new law as an important step forward, the king as a wise arbiter, and
both as an example to the entire Muslim world.
In actual fact, the reforms were not as drastic as the previous govern-
ment in 1999 had envisaged. The social meaning of the reforms would
depend to a large extent on the ways in which judges would interpret
the new law. Until now, our knowledge about actual practice is scant;
progressive Moroccan scholars and activists have been very critical of
the judges’ interpretations of the new law (e.g. Benradi et al. 2007).
110 LÉON BUSKENS

Research on judicial practice and everyday understandings of the law is

still required.
The extent to which globalisation played a role in the debate over
Moroccan family law was remarkable. Modernists as well as conserva-
tives and Islamists defended their positions by referring to universal
norms of human rights and international conventions. The different
factions thereby propagated their own forms of universalism.
Modernists referred to the women’s conferences in Cairo (1994) and
Beijing (1995), islamists to notions of puritanism, such as Wahhabism.
To a certain extent they agreed on the fact that they could disagree with
one another in the public sphere of the civil society.

Control of the public sphere

King Mohammed VI succeeded in dominating the debate about family
law, just as the makhzan has attempted from the early 1990s onwards
to control the debate on human rights and non-governmental organisa-
tions. In this way the state hoped not only to gain the support of the
emerging middle class, but to simultaneously secure continued control
of the public sphere. The result was previously unknown freedom for
the press, for social movements, and for Berber activists. Mehdi Ben
Barka, who had been a symbol for the oppressive rule of King Hassan
II, became a symbol for the new democratic system of Mohammed VI
after shocking revelations about his disappearance and the relatively
open debate about it. Several weeks after his father passed away, the
new king established a committee to compensate victims of unjust de-
tention or disappearance (cf. Slyomovics 2005). In January 2004
Mohammed VI installed the ‘Instance équité et reconciliation’, a govern-
ment body whose task it was to investigate the human rights violations
in Morocco during the ‘years of lead’ by convening public meetings
throughout Morocco (cf. Vairel 2004). Names of the accused were not
allowed to be mentioned.
The dominant political culture has remained rather authoritarian also
in other domains. News about the royal family that is considered too
outspoken has led, for example, to censorship and even criminal prose-
cution (cf. Hidass 2003). During the last years, the position of the
makhzan appears to have hardened. As recently as 2009, there continue
to be indications of severe censorship; the judiciary has reacted with
high fines for journalists and further limitations on press freedom. It
remains to be seen to what extent the makhzan will manage to control
the discourse of human rights and civil society and to turn it into an in-
strument to dominate public debate. Many intellectuals and activists do
not seem willing to give up the freedom they have tasted during the last
years.
SHARIA AND NATIONAL LAW IN MOROCCO 111

Drastic changes have not taken place in the Moroccan legal system in
the course of the last twenty-five years concerning the relationships be-
tween state law, Islamic norms, and local customs. Since the protecto-
rate period state law has constituted the framework in which other
forms of normativity are integrated. Islamic law has remained relatively
marginal, although the regime confirmed its symbolic importance
through the reforms of the Mudawwana. New liberties for Berber move-
ments and non-governmental organisations do not imply renewed re-
cognition of customary norms, although scholars and activists can, after
years of denial of the existence of Berber customs, openly publish on
the issue (e.g. Arehmouch 2001, 2006; Ouaazzi & Aît Bahcine 2005;
Hitous 2007; Belghazi 2008). The most remarkable development is the
increased attention of government and social organisations for interna-
tional legal norms, notably human rights, as laid down in international
conventions. While Islamic family law has gained renewed meaning as
a political symbol, ‘human rights’ (huquq al-insan) as a concept has be-
come the most important political discourse in present-day Moroccan
society, as a means of both legitimising and criticising government
policy.

3.5 Constitutional law

Since 1962 Morocco has had a constitution (see 3.3). This constitution
has been revised four times, namely in 1970, 1972, 1992, and 1996.
The most important reform of the 1996 constitution is the institution
of a parliament consisting of two chambers; previously the parliament
consisted of a single chamber (cf. Buskens 1999: 51).
The Moroccan constitution does not contain a stipulation regarding
the position of Islamic law in the legal system. All versions only speak
of Islam in general terms. In the preamble, Morocco is described as an
Islamic state; the state motto is: ‘God, the fatherland, the king’ (Art. 7).
Article 6 stipulates that Islam is the state religion and that the state
guarantees religious freedom to all. Government policy is explicitly fo-
cussed on the peaceful co-existence of Islam, Christianity, and Judaism.
Jews and Christians each have their own institutions, which are recog-
nised by the state and entitled to certain tax benefits. There appears to
be less acceptance of ‘heretic’ Muslims, such as Shi`ites, Ahmadis, and
Baha’i, and for revolutionary islamists. The extent to which religions
that are not recognised by Islam are accepted is unclear. In the past,
members of the Baha’i community were prosecuted and hindered (cf.
Buskens 1999: 51-52). It appears as though these prosecutions by the
government have ceased (U.S. State Department 2009). The small com-
munity of foreign Hindus is also allowed to practice its religion. Each
112 LÉON BUSKENS

year a festival for sacred music with performances stemming from reli-
gious traditions from all over the world is organised in Fez, with the ex-
plicit backing of the authorities. The festival fits with the official image
of tolerance and religion as a personal experience that the government
promotes. The victims of the 9/11 attacks in New York were commemo-
rated in a ceremony in the cathedral of Rabat, whereby representatives
of the three main religions came together, as well as important repre-
sentatives of the makhzan. A group of orthodox `ulama' expressed fierce
criticism of the presence of Muslims at this ceremony in a fatwa. The
Minister of Religious Affairs responded immediately by refuting the re-
bellious scholars (cf. Buskens 2003: 114).
In the preamble of the constitution the legislator explicitly refers to
human rights as the foundation of the Moroccan system. The constitu-
tion guarantees Moroccan citizens their fundamental rights. For exam-
ple, according to Article 5 all Moroccans are equal before the law.
Article 8 grants men and women equal political rights. All citizens
have access to public functions on the basis of Article 12. The influ-
ence of French public law is also evident in the separation of powers
and in the structure of the state and the legal system, as was previously
mentioned.
The most peculiar aspect of the Moroccan constitution concerns the
position of the king in the state system: he has considerable powers.
Article 19 is of particular importance for the relation between Islam
and the constitution. It refers to the king as ‘the commander of the
faithful’ (amir al-mu'minin), who has responsibility for, among other
tasks, ensuring respect for Islam. The king is, therefore, not only head
of state, but also leader of his subjects in Islamic matters. King Hassan
II, the architect of the Moroccan constitution, regularly referred to this
function in order to legitimise his regime. In his vision he held the
highest power in Islamic matters and he had the authority to indepen-
dently interpret Islamic law (ijtihad). The king also serves as chairman
of the council of Islamic scholars and determines the substance of
Islam in Morocco (Buskens 1999: 52-55). The recent debate about re-
forms of family law affirmed the key role of Muhammad VI in Islamic
matters. According to Article 106, the position of the king and Islam
are not subject to constitutional revision or review.
Article 20 determines that the eldest son of the king succeeds him.
This signifies that the head of state can never be a woman or a non-
Muslim. Despite this construction, women have already been holding
positions as ministers and as members of parliament for a number of
years. Both King Hassan II and his son Muhammad VI have also ap-
pointed influential counsellors from the tiny Jewish community, with
which the royal family maintains excellent relations.
SHARIA AND NATIONAL LAW IN MOROCCO 113

3.6 Family and inheritance law

The reform of family law in 2004 is the most important event in the
area of Islamic law in Morocco since the codification of the
Mudawwana in 1957-1958. The new law symbolises continuity with tra-
dition, as well as change. This is already implied by its title
Mudawwanat al-usra (‘Code for the Family’). The law, like its predeces-
sor, is named Mudawwana, literally ‘collection’ or ‘code of law’. The
name is also a reference to the famous overview of Maliki jurisprudence
composed by the Maghribi scholar Sahnun in the ninth century.
Instead of the factual specification al-ahwal al-shakhsiyya, or ‘the perso-
nal status’, added to the 1958 code, the legislator specified the new law
as referring to al-usra, or ‘the family’.
The legislator explicitly focusses on new rules to promote the stability
of the nuclear family, within which men and women are to act as
equals. Although King Muhammad VI repeatedly positioned himself as
a great supporter of the rights of women and children, he ultimately le-
gitimised the reforms by presenting them as measures to promote the
effectiveness of the revisions introduced by his late father Hassan II in
1993. In comparison with the old code of law, which contained 298 arti-
cles, the new code with its 400 articles is much more extensive. In ad-
dition to important innovations, the legislator has also retained much of
the material from the old Mudawwana, partially rephrased. The new
law, like its predecessor, contains a reference in the last article to the
Maliki legal tradition. New in this code is the reference to ijtihad, which
must serve justice, equality, and a harmonious family life, all of which
constitute important Islamic values. At the same time the legislator cau-
tions that efforts toward reform through the use of ijtihad should not go
too far, always keeping in mind fundamental principles of fairness.
Until the reforms of 2004 the patriarchal model of family relations
formed the basis for Moroccan family law. Marriage and regulations
concerning divorce, descent, custody over children, and inheritance law
were structured by intrinsically unequal relations of exchange between
a husband and wife. According to this conception of marriage, the man
offers a bride price and financial support to the woman in return for
her obedience and sexual availability. This patriarchal model is rooted
in classical Islamic law and the related world view, as well as in concep-
tions shared by many Moroccans. In family law this resulted in institu-
tions criticised by reformers, such as obedience of a wife to her hus-
band, polygamy, male marriage guardianship over daughters, and repu-
diation as a male privilege.
The new Mudawwanat al-usra is meant as a break with this model, as
the change of its name already indicates. The overriding principle of the
new model is contained in Article 4, which states that the goal of
114 LÉON BUSKENS

marriage is ‘the formation of a stable family under supervision of both

spouses’. According to Article 1 of the old Mudawwana, the husband was
considered to be the head of the family. In the stipulations on the legal
consequences of marriage, the distinction between rights and duties of
husband and wife are replaced with one article that describes their reci-
procal duties. The woman is no longer required to be obedient to the
man; instead, ‘the wife and the husband together are responsible for
the administration and the control of the house and the children’ (Art.
51(3) Mud). The view of equality between the spouses underlies numer-
ous other reforms in the new family law. However, some traces of the
old patriarchal model remain, such as the obligation for the husband to
provide his wife with a bride price and maintenance, the possibility for
polygyny, the prohibition for Muslim women to marry non-Muslim
men, the male privilege of repudiation, the different rights of fathers
and mothers over their children, and the inequality in inheritance.

Marriage
One of the most important issues in the reform was the institution of
marriage guardianship. According to the Maliki school of law, a woman
has to be represented by a male marriage guardian, preferably a close
relative such as a son, father, brother, nephew, or grandfather, when
contracting a marriage. Some modernists considered this subordination
to be outdated. In an opinion poll, however, it appeared that not only
conservatives and islamists, but also many reform-minded persons were
opposed to abolishing this institution (Buskens 2003: 106-107). The
large majority of the respondents considered control by the family over
an intended marriage to be a core value in Moroccan culture.
Nevertheless, the legislator decided to offer an adult woman the possibi-
lity to marry without a marriage guardian (Art.s 25-25 Mud). The new
law adopted a view current in the Hanafi school and, thus, remained
within the bounds of classical law. In 1993 the legislator had carefully
taken a first step in this direction by making marriage guardianship op-
tional for an adult woman whose father had died (Art. 12(4) Mud 1993).
At that time, the right of a father to force his daughter into marriage
against her will (jabr) was also completely abolished (Art. 12(4) Mud
1958; Art.s 5, 12 Mud 1993). According to the new law of 2004, adult
Moroccan women can enter into a marriage autonomously, although
they may still opt for assistance by a male guardian.
Another issue garnering continued attention has been the minimum
age of marriage. In 2004 the minimum marriage age for women was
raised from 15 to 18 years, becoming equal to the required age for men
(Art. 19 Mud). Islamists fiercely protested against this increase in age,
arguing that it would be a source of moral decay. Article 20 offers the
SHARIA AND NATIONAL LAW IN MOROCCO 115

judge the possibility to exempt women from this requirement, granting

them permission to marry at a younger age. In this case they need a
marriage guardian to conclude the contract for them. They would also
need the consent of their legal guardian since they have not yet reached
the age of legal majority. The reforms of 2004 lowered the age of legal
majority for both girls and boys to 18 years (Art. 209 Mud).
It is still not possible for a Muslim woman to marry a non-Muslim
man. The Moroccan legislator does, however, permit a Muslim man to
marry a Jewish or Christian woman, in accordance with classical sharia
rules (Art. 39(4) Mud). Few activists advocate the elimination of this
inequality, which is supported by the majority of the population. Some,
such as the Moroccan imam El-Moumni in Rotterdam (the
Netherlands), argue that it is wrong or even forbidden for Muslim men
to marry non-Muslim women in situations where Muslim women have
difficulty finding husbands, as seems to be the case in many Muslim
immigrant communities in Western Europe (cf. Van Koningsveld &
Tahtah 1998: 58-59).
The obligation for the husband to give his wife a bride price (mahr or
sadaq), a clear patriarchal element, has been maintained in the new law.
According to Article 13, the bride price is a condition for the legal valid-
ity of a marriage contract, in accordance with Maliki rules. The legisla-
tor emphasises that the bride price is a woman’s exclusive right, and
that as such she can dispose of it as she pleases (Art. 29 Mud). The size
and manner in which the bride price is handed over are laid down in
the marriage contract. Parties can also include other conditions in the
contract so long as they are not in conflict with the law (Art.s 47-48
Mud). An important innovation is the possibility to lay down in a sepa-
rate document that property acquired by both spouses during the mar-
riage is communal property. If such an agreement is lacking, it remains
at the discretion of the judge to decide whether he nevertheless wants
to divide the property in case of divorce (Art. 49 Mud).
Under the new law, women have the right to set the condition that
their husbands may not marry another woman (Art. 40 Mud). In the re-
forms, extensive attention has been given to measures limiting polyga-
my by men by introducing a series of administrative restrictions. The
man can only marry another woman in case the judge, his current wife,
and his future wife give their permission (Art.s 40-46 Mud). If a hus-
band violates his promise not to marry another woman, his wife can ap-
ply for a judicial divorce. Polygamy has been an important symbol in
the struggle for reform of the family law. For progressives, it has been
seen as a sign of inequality, for conservatives and part of the islamists,
a God-given privilege for the man. It is remarkable that the Moroccan
legislator, like legislators in other Arab countries, did not dare to abolish
this practice completely, even though it seldom occurs in practice.
116 LÉON BUSKENS

The reforms expressly emphasise the equality of men and women in

marriage (Art. 51 Mud). Neglect of reciprocal rights and duties is sanc-
tioned, and marriages can be dissolved by the judge on the basis of en-
during discord (shiqaq) (Art. 52 Mud). The rights of children have also
received a great deal of attention, with reference to international con-
ventions (Art. 54 Mud).
The 2004 law gives rules for the writing down of a marriage contract
by professional witnesses (the `udul) under the supervision of a judge.
These representatives of the government are tasked with seeing to the
enforcement of legal stipulations that for example define and condition
the minimum age of marriage, polygamy, and mutual consent to the
marriage contract. The obligation that a marriage must be mentioned
as a side note in the birth register is also meant to contribute to in-
creased government control.
Articles 14 and 15 contain an important innovation concerning the ac-
knowledgement of foreign family law in Morocco. Moroccans who re-
side abroad may conclude a marriage according to the law of the coun-
try in which they are residing. This marriage can be recognised in
Morocco, if several requirements of Moroccan marriage law are also
met, such as the stipulation of a bride price, the presence of two
Muslim witnesses, and the absence of marriage impediments. Article
128 contains a similar rule for the recognition of divorce by a foreign
judge.
With these reforms the legislator attempts to find solutions for the
possible problems faced by the numerous Moroccans who have emi-
grated to Western Europe (cf. Rutten 1988; Foblets 1994; Foblets &
Carlier 2005; Jordens-Cotran 2007). Maintaining ties with European
immigrants is of great importance for the Moroccan economy, since
they are the main source of foreign currency. At the same time, the re-
cognition of foreign marriages and divorces are also meant as an ex-
pression of goodwill toward the European governments with whom
Morocco would like to conclude bilateral conventions concerning the
application of Moroccan family law, and to whom it wishes to show a
positive image of the Moroccan legal system.

Divorce
The forms of divorce stipulated in the new Mudawwana are manifold
and complex. The original plan to replace all existing possibilities with
a judicial divorce accessible to both spouses equally was not adopted.
Judicial divorce based on enduring discord between the couple (shiqaq)
has been added to the law, next to the already existing forms of divorce
in the previous Mudawwana. The legislator has probably retained the
old forms in order to prevent the reforms from appearing too abrupt
SHARIA AND NATIONAL LAW IN MOROCCO 117

and to avoid fierce criticism from opponents. The right of repudiation

had great symbolic value in the debates about reforms, both for suppor-
ters and for opponents. Conservatives and islamists considered it to be
a God-given right that could not be abolished. For defenders of wo-
men’s rights, it was one of the most blatant examples of inequality be-
tween the sexes and a threat to children’s rights.
Moroccan family law contains, in addition to decease and annulment
due to flaws in the contract, the following possibilities for marriage
dissolution:

1. Repudiation (talaq)
Repudiation is a simple legal procedure that can be performed by the
husband, or by the wife if she has been granted this right by her hus-
band (Art.s 78-93 Mud). The law provides extensive rules for the proce-
dure that must be followed. The `udul can only draw up a repudiation
document after approval from a judge. The judge summons both
spouses and attempts to reconcile them before giving his approval.
When attempts at reconciliation fail, the law gives detailed rules that
aim to ensure that the woman and any children suffer as little damage
as possible from the repudiation. The man, for instance, must deposit a
certain amount at the court so that financial support can be provided
for his ex-wife and their children. Traditional forms of repudiation, such
as by oath, linked to fulfilment of certain conditions, and triple talaqs,
are not valid under current Moroccan law (Art.s 90-93 Mud).

2. Repudiation by the judge (tatliq)

There are two forms of judicial dissolution: repudiation by the judge
upon the request of one or both spouses due to enduring discord (Art.
94 Mud); and repudiation by the judge upon the request of the wife.
The law only recognises six grounds on which a woman can base her
request (Art.s 98-113). The legislator in this regard follows a liberal in-
terpretation of classical Maliki law, which allows the judge to dissolve a
marriage in case the man does not fulfil his marital duties to the extent
that his neglect harms his wife. Continuation of the marriage in that
case is considered unreasonable and undesirable according to the
Maliki scholars. The six grounds, as enumerated in the new law, are:
– failure of the husband to fulfil the conditions agreed upon in the
marriage contract (Art. 99 Mud);
– the woman suffers harm (darar) caused by the husband; in case the
woman cannot prove the harm but nevertheless persists in her de-
sire for divorce, she can use the procedure for enduring discord be-
tween the couple (shiqaq) (Art. 100 Mud);
– failure of the husband to fulfil his duty to provide maintenance to
his wife (Art. 102 Mud);
118 LÉON BUSKENS

– absence of the man for more than one year (Art.s 104-106);
– ailments and defects that hinder the marriage and of which the per-
son requesting the divorce was unaware at the time of the marriage,
such as long-term illness; a man can also request divorce on this
ground (Art.s 107-111 Mud);
– refusal of the man to engage in sexual relations with his wife, as ex-
pressed in a vow (Art. 112 Mud).

3. Repudiation by mutual agreement

This form of dissolution can occur with (Art.s 115-120 Mud) or without
(Art. 114 Mud) compensation by the husband to the wife. The repudia-
tion of the wife by her husband in lieu of compensation is known as
khul`. In case where parties cannot agree about the compensation, wo-
men may make use of the procedure for enduring discord (Art. 120
Mud).

All forms of divorce are effectuated under the supervision of the judge,
and sometimes professional witnesses as well. Both parties are sum-
moned by the judge in the handling of the divorce. In almost all cases,
except for repudiation by the judge due to absence of the man with an
unknown place of residence (Art. 113 Mud) or repudiation against com-
pensation whereby parties have reached an agreement about the com-
pensation (Art. 120 Mud), the judge attempts to reconcile the parties
prior to approving the divorce. In the procedure to be followed, judges
and the `udul are tasked with ensuring that men fulfil their financial ob-
ligations towards their wives and children. The rules for registration
have also been made stricter under the new law. As with marriage sta-
tus, the civil register of births and deaths contains a side note of the di-
vorce, where applicable (Art. 141 Mud).
Article 128 further broadens the possibilities for divorce by recognis-
ing decisions by foreign judges, as was previously mentioned. The new
Mudawwana in principle grants both men and women the opportunity
to request the judge to dissolve their marriage. Although not all
Moroccan jurists want to acknowledge this, a certain inequality does re-
main because men automatically have the right of repudiation by enter-
ing into a marriage, while women only have this right in case the man
grants it to her. The man’s right to repudiation is nevertheless subjected
to judicial control. For this reason some Moroccan jurists, including re-
presentatives of the Ministry of Justice, argue that the term talaq should
no longer be translated as ‘repudiation’, but should instead be consid-
ered a special form of judicial divorce.
SHARIA AND NATIONAL LAW IN MOROCCO 119

Descent and relations between parents and children

The Mudawwana contains several important innovations as compared
to classical Islamic law and the previous family law with regard to des-
cent and the relations between parents and children.
Possibilities to establish the descent of a child with regard to a father
have been broadened as a reaction to the important social debate about
unmarried mothers with illegitimate children (Bargach 2002). The leg-
islator has made it more difficult for men, who get women pregnant
and then abandon them, to escape from their responsibilities. The new
law provides the judge more discretion in establishing paternity and the
existence of a marriage. Article 16 enables the judge to declare the exis-
tence of a marriage, even when a marriage contract is lacking: progeny
or pregnancy are considered as means of proof of the existence of a
marital bond. Articles 155 and 156 further elaborate on this possibility.
When persons assume they are maintaining conjugal relations, without
formally having entered into a valid marriage, this can be considered as
a case of what is called shubha, or maintaining relationships in good
faith without actually knowing the legal details. Articles 152 and 155 re-
cognise shubha as a valid ground to establish descent. Article 156 pro-
vides further conditions for establishing descent in case of a marriage
without an official marriage document. If the man denies fatherhood,
the law allows the use of all legal means of evidence to establish pater-
nity (cf. Al-Kashbur 2007). With these innovations based on the classi-
cal concept of shubha, the legislator has taken an important step to limit
the negative effects – legal, economic, and social – of illegal descent for
both mother and child.
With regard to the authority of parents over their children, the legisla-
tor has retained the classical distinction between care (hadana) and legal
guardianship (wilaya), while simultaneously strengthening the position
of mothers. During the marriage both parents provide care for their
children, hadana (Art. 164 Mud). After dissolution of marriage, the
mother is the first to obtain the right to care, the father being the second
in line (Art. 171 Mud). At the age of fifteen children can choose with
which parent they wish to stay (Art. 166 Mud). The mother no longer ne-
cessarily loses the right to care if she remarries, unlike under classical
law (Art. 175 Mud). Another reform allows the mother more flexibility in
exercising her right to move within Morocco, even if this move would re-
sult in the children living geographically farther away from their father
(Art. 178 Mud). The authority over the children or the legal guardianship
(wilaya) remains the privilege of the father, in accordance with classical
views (Art. 236 Mud). The mother can obtain this right if the father is
unable to act as a legal guardian (Art. 231 Mud), a reform of the classi-
cal law that was already introduced in 1993 (Art. 148 Mud 1993).
120 LÉON BUSKENS

Another important institution related to the patriarchal family model

is the husband’s duty to provide maintenance to his wife and children
(nafaqa). This duty has not been abolished: the man remains obliged to
support his wife and children (Art.s 194, 197, 198 Mud). The woman,
in contrast, cannot be obliged to financially support her husband. In
case the father is not capable of supporting his children and the mother
is capable of doing so, then it becomes her duty to provide for their
maintenance (Art. 199 Mud). The new law strengthens the rights of
children to maintenance in cases where they are, for example, still
studying or are disabled. In Article 202 the Mudawwana refers to the
possibility of criminal prosecution when the father neglects his duty to
support his family for a month or more.
The Moroccan legislator has respected the classical prohibition of
adoption in Article 149 of the Mudawwana. A testamentary bequest fa-
vouring a person whereby he or she receives part of the inheritance as
if he or she were a child is possible, but only within the limits that ap-
ply for bequest, thus not exceeding one third of the total inheritance. In
addition, the Mudawwana offers the possibility to contract the duty to fi-
nancially support a third party (kafala) (Art.s 187, 205 Mud). Morocco
succeeded in 1996 in receiving recognition from the Hague
Convention on Protection of Children for this institution of kafala as
one of the instruments for the protection of a child. The recognition of
this duty as a sort of adoption was a reason for Morocco to give up its
objections towards this convention and become a party to the conven-
tion (cf. Buskens 1999: 196-198).

Inheritance law
The structural inequality between men and women is sustained in the
rules of the Mudawwana on inheritance: a woman inherits half of what
a man in the same position inherits (cf. Rutten 1997). Reforms in this
area are apparently difficult to realise. In debates, women have ad-
dressed this inherent inequality, but it has not been given high priority.
For many this is an issue that has only relevance for a small group of
wealthy women. It is understood that in these circles fathers know how
to use the means offered by law to favour their female relatives.
The legislator did remove the inequality between grandchildren who
would be excluded from an inheritance of a grandparent because their
parent had died. Since 2004 a bequest is not only obligatory for grandpar-
ents in favour of their grandchildren via the son, but also via the daughter
(Art.s 369-372 Mud). Hereditary succession between a Muslim and a
non-Muslim is still impossible, as between a natural parent and an illegi-
timate child (Art. 332 Mud).
SHARIA AND NATIONAL LAW IN MOROCCO 121

Judicial practice
Not all Moroccans endorse the new vision according to which women
and children have increased rights, while men are forced to accept stric-
ter obligations. In fact, the significance of the reforms largely depends
on the way in which judges and `udul apply the law in practice.
The administration of justice concerning family law takes place in
special family law courts that are part of the first instance courts. Both
men and women can act as judges. They supervise the `udul – male pro-
fessional witnesses – who write down marriage contracts and repudia-
tion documents and who divide inheritances. The `udul have protested
because the reforms have limited their tasks in substance and scope,
while at the same time making their jobs more complex and cumber-
some in practice. Due to their education in classical law, the `udul also
generally adhere to a more conservative vision of Islam.14 Likewise, it
appears that not all judges of the old guard are prepared to apply the
new visions espoused by the most recent version of the Mudawwana.
For example, a judge in Rabat in November 2004 responded to the
question of whether a woman could always obtain a judicial divorce by
stating that nobody could force him to pronounce a divorce. The female
president of the family court promptly corrected him by explaining that
her older colleague did not yet understand the new law. But indeed, a
report from a Moroccan women’s organisation indicates that judges do
frequently give preference to interpretations of the law, which go back
to earlier visions of family life (Ligue Démocratique 2005).15
The Moroccan government has started a widespread campaign to
clarify the vision of the legislator to the judiciary and to thereby pro-
mote the application of the law. The Ministry of Justice organises
courses and meetings all over the country. It has also published an offi-
cial manual for the application of the law in practice, which provides
for the proper interpretation of articles and further legitimises their ex-
istence in Islamic terms. A French version of this guide has also been
published, and is available on the website of the ministry as well.
It is evident that the Moroccan government considers it important
that a suitable image of the law is presented outside of Morocco. The
new family law could apply in several Western European countries via
international private law. Through the reforms, the government wishes
to promote international cooperation in legal matters and recognition of
Moroccan law. The concern about images held by foreign countries
partly explains why an official French translation of the Mudawwanat al-
usra took so long. Moroccan jurists could not agree on the translation
of several terms. The jurists of the Ministry of Justice, for example,
were of the opinion that the word talaq in the new law should no longer
be translated as ‘repudiation’.
122 LÉON BUSKENS

3.7 Criminal law

In Moroccan criminal law, norms that are directly derived from classical
sharia play a limited role. There is no mention of corporal punishments
for specified crimes mentioned in the Qur’an (hudud) or retribution.
The criminal law is for an important part inspired by French legislation
and codified in the Code of Criminal Law of 1962, most recently re-
vised in 2003, and in the code of criminal procedure of 1959, of which
a new version went into effect on 1 October 2003. The reforms are
partly related to the war on terrorism that received a great deal of atten-
tion in Morocco following the attacks in Casablanca in May 2003.
According to human rights organisations, the methods of prosecution
used resulted in violations of human rights, even though Morocco is
party to the Convention Against Torture.
Article 222 is one of the few stipulations of the criminal code that ex-
plicitly refers to a norm derived from Islamic law. The article sets forth
that Muslims who publicly disrespect the rules of fasting in a provoca-
tive manner during the month of Ramadan can be punished with a fine
or detention. This article is part of a series of general articles concern-
ing the respect for religious practices that fall under a chapter on civil
rights. The maximum punishments are three years imprisonment and
a fine of 500 dirham (around 50 euro). Articles 220 and 221 make the
obstruction of religious practices also, in principle, punishable. Article
223 concerns damaging, destructing, or staining buildings, places, and/
or objects related to religion. Articles 268 to 270 focus on desecration
of tombs and Articles 271 and 272 focus on protecting the integrity of
mortal remains, all with maximum punishments of five years imprison-
ment and fines of up to 1000 dirham (around 100 euro).
Article 220 of the criminal code forbids the undermining of the faith
of a Muslim or attempts to convert a Muslim to another religion. The
article specifies charity and welfare work as punishable methods of con-
verting a person. Christians who limit themselves to charity work can
carry out their work unhindered, but missionary work may result in
prosecution and expulsion. Distributing Bibles in European languages
is permitted, but for the import of Arabic translations the government
refuses to give permission, despite the absence of any explicit legal pro-
hibition (U.S. State Department 2004).
Morocco has made a reservation to Article 14 of the Convention for
the Rights of the Child (CRC), which grants children freedom of reli-
gion, on the basis that Islam is the state religion. In April 2005 a group
of members of parliament for the Istiqlal party called on the Minister of
Religious Affairs to take measures against evangelists who presumably
tried to convert poor youth. Although apostasy is not punishable for
Muslims according to the criminal code, persons who converted to
SHARIA AND NATIONAL LAW IN MOROCCO 123

Christianity were until a few years ago questioned by the authorities

and sometimes even detained for a short period of time on the basis of
Islamic legal norms (U.S. State Department 2004). Furthermore, con-
verting is not socially accepted and can lead to scoffing and expulsion
from the community.
A series of articles make the corrupting of Islamic values with regard
to family life and honour punishable. This can be conceived as a confir-
mation of the patriarchal Islamic family model, which is rooted in the
Moroccan culture. These stipulations can, however, for the most part be
traced back to the French Code pénal and are not examples of the influ-
ence of classical Islamic criminal law. Penalisation applies to abandon-
ing children (Art.s 459 and further), child abduction (Art. 471 and
further), and abortion absent medical grounds (Art. 449). Articles 479
to 482 concern criminal prosecution with regard to the abandonment
of household duties by one of the spouses, non-compliance with the ob-
ligation to provide maintenance, and neglect of the children.
In Articles 483 to 496 the criminal code sets forth punishments for a
number of violations of public morality and virtue, such as rape, inde-
cent assault, incest, sexual contact between unmarried people, adultery,
and the abduction of a married woman. Articles 497 to 504 prohibit
prostitution and moral corruption, such as pornography, and Article
608 (4) prohibits the public display of offensive images. Article 488
prescribes an increase in the penalty in case indecent assault, rape, or
incest has led to the loss of virginity. According to Article 492, adultery
is an offence that is only punishable in case a complaint is made.
The penal code prescribes rules for cultural crimes in which gener-
ally men use violence against members of their family or household
when they consider their honour to have been tarnished. Article 414 of
the criminal code prescribes an increase in the penalty if the accused
has used violence against relatives with whom he is in a relationship of
authority. Articles 418 to 424, in contrast, allow a decrease in penalty in
case a family member or a third party has used violence when he is
confronted with an act of a sexual offence. Article 418 allows for man-
slaughter and maltreatment in case a man catches his wife committing
adultery. Article 419 allows castration in case of direct confrontation
with an immoral offence. Article 420 excuses a family head for mal-
treatment, even if this unintentionally results in death, when he is con-
fronted with unauthorised sexual acts in his household. Article 422
states that there can never be a decrease in punishment in case of the
murder of a parent. Various women’s groups have been struggling for
years for the abrogation of Article 418 in particular, which they perceive
as an approval of violence against women. Until now this combat
against what they consider to be the Moroccan patriarchal ‘macho’ cul-
ture has not been successful (Buskens 2003: 109).
124 LÉON BUSKENS

Other articles that can be understood as a protection of Islamic

norms without being directly founded on classical Islamic law include,
for example, Article 377, concerning false oaths and Articles 368-379 on
false testimonies and perjury. Article 609(35) of the criminal code states
that predicting the future and explaining dreams is punishable.
Numerous other forms of behaviour that are in conflict with Islamic
norms are only punishable in case the party involved does not stay with-
in the state legal framework. Licences are required, for example, for op-
erating gambling halls and organising gambling games (Code of
Criminal Law, Art.s 282-286). Selling alcoholic beverages is permitted,
but also tied to licences. Alcoholics and other addicts can be forcibly ad-
mitted to rehabilitation according to Articles 80-85 when they have
committed punishable acts as a result of their addiction.
In sum, one can conclude that the Moroccan criminal law contains
few traces of classical Islamic criminal law. French criminal law served
as a model that reinforced some ‘Islamic’ norms concerning family life,
public morality, property, and violence. Other Islamic norms, such as
the prohibition of gambling and alcohol, are not directly enforced by
the law.

3.8 Other areas of law, particularly commercial law

Morocco does not have a comprehensive civil code. The relevant legal
rules are spread over several codes and laws. French jurists composed
the code of contracts in French in 1913, immediately after the establish-
ment of the protectorate (Dahir formant code des obligations et des con-
trats). This code remains the cornerstone of civil law, yet it barely con-
tains any reference to Islamic legal norms. Other areas of civil law, such
as trade law (1996 Code de commerce), insurance law (2002 Code des as-
surances), and banking law, are also familiar for jurists who have some
knowledge of French law.
Since the end of the 1980s the Moroccan government has been try-
ing to promote economic growth by making it easier for foreign inves-
tors to do business in Morocco. There is no prohibition on interest;
Moroccan banks offer and demand relatively high interest rates. A legal
obligation to pay an Islamic tax (zakat) to a religious tax office is also
absent from the law.
Rights to real estate are modelled after French law in so far as the
real estate is registered in public registers. About 90 per cent of immo-
vable property is not registered, in which case Islamic and customary
rules apply. These rules are not codified, but partially gathered in classi-
cal legal treatises. Religious foundations (awqaf, sing. waqf) also exist.
They are administered by the Ministry of Religious Affairs and
SHARIA AND NATIONAL LAW IN MOROCCO 125

Religious Foundations and form an important source of income (Stöber

1986). Limited reforms have recently been introduced (cf. Benyahya
2007).
As previously mentioned, the Moroccan state structure and the legal
system are characterised by a creative and selective usage of elements
of Islamic tradition, the most famous being the institution of ‘the com-
mander of the faithful’. Another example of this is King Hassan’s re-
sponse to the riots in Casablanca in 1981, where he tried to appease the
masses by creating new institutions to oversee the quality and prices of
staple food items. He did so by reinventing in 1982 two economic func-
tions to control the market, namely the muhtasib (market inspector) and
the amin (head of corporations). The terms are taken from classical
Islamic law, even though their structure is for the most part new. The
muhtasib controls the price and quality of goods and services as well as
respect and good morals in the public space, hence fulfilling the func-
tion of hisba. He is supported in his function by umana’ (sing. amin),
heads of corporations of craftsmen and merchants. The muhtasib is ap-
pointed by royal decree (dahir), and the amin is elected by the members
whom he leads.
An example of an invented tradition that uses classical Islamic legal
terminology to bestow legitimacy on a modern state institution was the
establishment by King Mohammed VI of an ombudsman institution by
the name of diwan al-mazalim, where citizens could submit complaints
about the functioning of government services. The institution was cre-
ated on 1 December 2001 on the occasion of the international day for
human rights. The king presented the institution as a strengthening of
human rights in conjunction with the principles of Islamic law and his
function as commander of the faithful (amir al-mu'minin).

3.9 International conventions and human rights

obligations

The Moroccan state officially assigns great importance to human rights.

At the end of the 1980s King Hassan II began to pay lip service to hu-
man rights as part of a new policy aimed at the urban middle class and
economic liberalisation (see 3.4). In 1990 he established a Council for
Human Rights, and in 1993 he appointed a Minister for Human
Rights. His successor Mohammed VI reformed the Council for Human
Rights and implemented the above-mentioned ombudsman institution
(diwan al-mazalim). On numerous occasions he emphasised the com-
patibility of Islamic norms with human rights. This official ideology
can also be found in the preamble of the 1996 constitution, in which
human rights play a prominent role.
126 LÉON BUSKENS

Morocco became a member of the United Nations on 12 November

1956, several months after independence and the unification of the
three zones into one national state. Since that time, the country has rati-
fied a series of important conventions: the Convention on Genocide;
the International Covenant on Civil and Political Rights (ICCPR); the
Covenant on Economic, Social and Cultural Rights (ICESCR); the
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD); the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW); the Convention
Against Torture (CAT); the Convention on the Rights of the Child
(CRC) and its two optional protocols; and the International Convention
on the Rights of All Migrant Workers and Members of Their Families
(ICRMW).
Morocco has made reservations and declarations with the signing of
some of these conventions. The reservations to the Convention on
Genocide, ICERD, CAT, and ICRMW were made for the purpose of
limiting the jurisdiction of international judicial bodies with relation to
Morocco and its full compliance with the conventions. In terms of con-
ventions specific to the rights of women and children, as set forth by
CEDAW and CRC, Morocco made reservations invoking Islam. The re-
servation made to the CRC concerns Article 14, which offers children
freedom of religion. Morocco refers to the freedom of religion in the
national constitution, but also to the stipulation that Islam is the state
religion. This means that a Muslim child cannot change his or her reli-
gion, and thereby does not have absolute freedom of religion.
The declarations made vis-à-vis CEDAW primarily concern Article 2.
The obligations to lay down the equality between men and women in
legislation, and to take measures accordingly, may not restrict the con-
stitutional stipulations that regulate the succession to the crown. This
means that Morocco maintains the requirement that the head of state is
a man. Article 2 furthermore only applies in so far as it does not con-
flict with the stipulations of Moroccan family law which grants different
rights to men and women based on Islamic law and which are aimed at
creating harmonious family relations. The enforcement of Article 15(4)
of CEDAW, which grants women freedom of movement and freedom
of residence, was limited by Articles 34 and 36 of the 1993 Mudawwana
as those articles obliged women to obey their husbands and to live with
them. The obligation of obedience has been abolished with the family
reforms of 2004, but Article 51 of the 2004 Mudawwana still mentions
co-habitation as a legal consequence of marriage.
The reservation made to Article 9(2) CEDAW concerns the equality
between men and women in the possibility to pass on their nationality
to their children. Until 2007 the Moroccan legislation on nationality re-
stricted the right of women to obtain Moroccan nationality for their
SHARIA AND NATIONAL LAW IN MOROCCO 127

children. Moroccan women’s rights movements have long advocated for

the abolition of this discriminatory barrier to obtaining nationality. At
present, it appears that while Morocco has not formally withdrawn its
reservation, Article 6 of the 2007 Nationality Act allows women to
transfer their nationality of origin to children born of foreign fathers
and could in practice be considered as a withdrawal of the initial reser-
vation to the Convention on this point.16
The reservation made to Article 16 CEDAW concerning the equality
of men and women in entering into marriage and the possibility to ob-
tain a divorce is aimed at safeguarding the male privilege of repudia-
tion. According to Moroccan family law in force until February 2004,
the marital duties of men and women were unequal: a husband had to
offer the woman a bride price and maintenance, whereas his wife en-
joyed complete control over her own property. For this reason, the man
had the right to repudiation, while the woman had to request a judge
for a divorce. In the vision of the Moroccan legislator, this inequality no
longer exists in the Mudawwana of 2004. In the reservation made to
Article 29 CEDAW, Morocco does not subject itself unconditionally to
mediation in case of a dispute between states about the interpretation
or application of this convention.
Morocco ratified CEDAW in 1993, but never published the text of the
convention in the official bulletin. In the context of the debate about re-
forms of family law, Moroccan women’s organisations requested King
Mohammed VI to withdraw the reservations and to publish the conven-
tion. Their actions were only partially successful: on 26 December
2000 the king proclaimed CEDAW by royal decree, but did not at the
same time withdraw Morocco’s above-mentioned reservations to the
Convention (cf. Buskens 2003: 108-110). Indeed, although it would ap-
pear based on Morocco’s latest report to the Committee in 2006 and a
statement by the Ministry of Justice on the occasion of International
Women’s Day in March 2006, further reiterated in a royal statement
on the occasion of International Human Rights Day on 10 December
2008, that Morocco intends to withdraw most of its reservations to the
Convention, it has not yet formally done so. During the fortieth session
of the Committee in February 2008, the Moroccan representative (the
Minister for Social Development, the Family, and Solidarity) made the
argument that some reservations, such as to Article 9 as addressed
above, have already begun to take place, but that the Committee should
bear in mind that Morocco is still a young nation and that ‘attitudes
[do] not change overnight’.
In the debate about family law, human rights and international con-
ventions have played an important role for activists of different back-
grounds as well as for the government. King Mohammed VI repeatedly
emphasised his respect for international law and his desire to bring the
128 LÉON BUSKENS

family law into compliance with both Islamic law and human rights.
The Moroccan Ministry of Foreign Affairs published a book in 1997 in
which the international conventions for the benefit of women’s rights
were extensively presented (Ministère des Affaires Etrangères et de la
Coopération 1997). The fact that this work was published in French
showed that it was also aimed at improving Morocco’s international re-
putation with regard to its treatment of women and respect for human
rights standards.
The Moroccan reservations to the conventions partly serve to allow
Islamic norms to prevail, mainly concerning the unequal relations be-
tween men and women. On the formal level of Moroccan legislation,
the possibilities of conflict between Islamic law and human rights
norms are indeed mainly in the domains of the relationships between
men and women and between parents, especially fathers, and their chil-
dren, as regulated in family and criminal law. Particularly the reserva-
tion made to Article 2 CEDAW, one of the main articles of the conven-
tion, permits Morocco to avoid adjusting its legislation to realise more
equality between men and women. According to the official Moroccan
view, the 2004 reforms in family law satisfy the required equality be-
tween men and women.

In accordance with its reporting obligation under CEDAW, the

Moroccan government submitted an official report to the U.N.
Committee for CEDAW three times, with the latest in August 2006 act-
ing as a combined third and fourth periodic report. The Committee dis-
cussed the reports in meetings in January 1997, July 2003, and
February 2008. In each session, the Committee urged Morocco to fully
enforce the stipulations of the convention and to withdraw its reserva-
tions. According to the Committee, a liberal interpretation of Islam, as
practiced in some other Islamic countries that have not made any reser-
vations, could offer a solution for the obstacles Morocco has identified.
In the first discussion of 1997, however, Morocco argued that the reser-
vations were the result of a consensus in the Moroccan society, and that
they would, therefore, be difficult to modify. The Committee responded
that educating the population would be a good method to bring about
social changes. Members also expressed their concern about the scarce
participation of women in the political system and about reports of high
rates of violence against women. In the discussions of 2003, the
Moroccan representation presented the proposals for reform of the
Mudawwana as an important instrument in satisfying the requirement
of the convention to abolish all forms of discrimination against women.
By the time of the discussions in 2008, the new Mudawwana had been
brought into force and from the Moroccan representation’s perspective
comprehensively included ‘the principles of equality and shared
SHARIA AND NATIONAL LAW IN MOROCCO 129

responsibility’. While the Committee applauded Morocco for its steps

thus far, it pressed for clarification as to the status of its withdrawal of
the reservations and expressed ongoing concern about discrimination
against women and girls in practice as well as in accordance with for-
mal legislation.
The official treaty obligations were also the subject of alternative re-
ports and important debates for women’s and human rights organisa-
tions within Morocco. They have used the findings of the committee in
their struggle for reforms of family and criminal law (cf. Buskens 2003:
108-110). These groups also advocated for the abolitions of reservations
made to CEDAW, but have not yet proven fully successful.
As part of its official policy to establish the rule of law and to uphold
human rights, the Moroccan government formally established bodies
such as the Consultative Council for Human Rights (‘Conseil consulta-
tif des droits de l’Homme’), the Ministry of Human Rights, and the
Equity and Reconciliation Commission (‘Instance équité et reconcilia-
tion’). According to numerous reports, however, government actions in
practice are often not in accordance with the official policy.
International organisations such as Human Rights Watch, Amnesty
International, and the U.S. State Department’s Bureau of Democracy,
Human Rights, and Labor have published detailed reports about the en-
forcement of human rights in Morocco.
Violations of human rights in several areas are revealed in recent re-
ports from these organisations. The Moroccan authorities took strong
actions against various islamist groups after the bomb attacks in
Casablanca in May 2003. The employed methods of investigation, ar-
rests, and acts of torture have led to fierce domestic and international
criticism. This criticism appears to have resulted in improvements. The
freedom of press, particularly in matters concerning the royal family
and the status of the Sahara provinces, has seriously suffered over the
past years. These violations are, however, not related to Islamic legal
norms.
Freedom of religion, as guaranteed in the constitution, proves to be
relatively effective in practice. Christians and Jews can practice their re-
ligions freely, as long as they do not attempt to convert Muslims. As
was mentioned previously, Morocco has made a reservation to the
Convention on the Rights of the Child that forbids apostasy for Muslim
children. There is less tolerance for deviating Islamic ideas than there
is for other religions of the Book. This is partly due to cultural factors,
such as the stigma of apostasy, and partly because the government con-
siders Shi`ites to be a direct threat to authority. The makhzan supports
the ideal of the peaceful coexistence of religions, as can be noted from
the welcome prepared for the late Pope John Paul II and the close rela-
tionships between the royal family and the Jewish community.
130 LÉON BUSKENS

Violence against women is also a topic that has received attention in

recent human rights reports. The criminal code determines that certain
forms of violence are punishable, but for other forms, such as the so-
called ‘honour related’ offences, there is a possibility for a reduced pen-
alty. In practice, domestic violence is prevalent in Morocco, as in many
other Mediterranean and Middle-Eastern societies where gender rela-
tions are conceptualised in terms of honour and shame. Human rights
organisations have repeatedly called upon the government to take mea-
sures against this. The underlying reasons for male abuse, however, are
more related to general social and cultural issues, than to specific
Islamic norms.
The public debate about human rights in Morocco has shown an
unprecedented openness in the past years. A delegation of Amnesty
International commented on this new openness following an official
visit in January 2005 and again as recently as 2009 in the context
of Morocco’s progress on women’s rights laws and its uniqueness
within the Arab world in establishing an Equity and Reconciliation
Commission.17 Not only the official views of government organisations
have received publicity, but also the voices of numerous non-govern-
mental organisations. This development of the public sphere can also
be understood as a struggle of opposition groups to gain access to the
political arena (Hegasy 1997; Rollinde 2002; Slyomovics 2005). An im-
portant part of the attention is focussed on disappearances, murders,
and torture of political adversaries during the regime of Hassan II, but
there is concern that the Commission’s investigations are limited and
that years later its recommendations have still not been implemented.

3.10 Conclusions

The historical overview demonstrates that Islamic law is not a static cor-
pus of rules, but rather a dynamic tradition that has been changing for
centuries in conjunction with social and political developments. During
the twentieth century in particular, Islamic law was marginalised in the
Moroccan legal system. Under the influence of French and Spanish pro-
tectorate rule, state law gained primacy, while Islamic norms and cus-
tomary law were restricted to a subordinate position within state law.
Their incorporation into the legal system also resulted in changes in
form and content of Islamic law and customary law. Colonial officials
concluded that within this wider framework Islamic law and local cus-
toms were to a large extent mutually exclusive systems of normativity.
After independence the government further limited the influence of
Islamic law and virtually denied the existence of customary law by lar-
gely excluding it from the official state system (cf. Buskens 2000).
SHARIA AND NATIONAL LAW IN MOROCCO 131

Form and content of the prevailing Moroccan law are strongly influ-
enced by the French model, with limited Islamic elements. According
to the constitution, Morocco is an Islamic state in which Islam is the
state religion, but the consequences for the legal system are not further
elaborated. Article 19 of the constitution determines that the king is
‘the commander of the faithful’, which according to the official doctrine
means that he has the highest authority with regard to Islamic law. In
criminal law particularly the articles concerning morality and public or-
der contain Islamic elements, but are not laid down as rules derived
from classical Islamic criminal law. The hudud punishments described
in the Qur’an and the rules for retribution from classical fiqh are en-
tirely absent from Moroccan law. There are only marginal traces of
Islamic law in commercial law, and the few Islamic norms do not hin-
der trade based on a Western model. Islamic restrictions concerning
banking or contract formation are lacking. Rights to real estate can be
established either according to modern law or Islamic law and local cus-
toms. Religious foundations (awqaf) also exist and are administered by
the Ministry of Religious Affairs.
Family and inheritance law is the most important domain of Islamic
legal norms. The Mudawwanat al-usra of 2004 applies to all Moroccans,
except for the small Jewish community. This family law contains impor-
tant reforms that are justified by the legislator by referring to the princi-
ple of ijtihad. The underlying model for family relations assumes the
equality of both spouses, instead of the patriarchal family model of clas-
sical Islamic doctrine. This patriarchal model is widespread in Morocco
as a cultural ideal, although it is at present heavily discussed and losing
influence. Both parties should contract a marriage out of their own free
will and for the most part equal rights are granted.
However, some elements of the Islamic patriarchal model have been
kept. The man still has the duty to provide his wife with maintenance.
The right of a man to marry multiple women is also maintained, albeit
with strict limitations, as under the new law women are not obliged to
accept polygamy. Muslim men are permitted to marry non-Muslim wo-
men, whereas Muslim women are only allowed to marry Muslim men.
The man has the right to break up the marriage by means of a unilat-
eral action (talaq), but he can only do so with the judge’s permission.
The woman, like her husband, has the right to obtain a divorce from
the judge when she does not desire to continue the marriage. With re-
gard to the authority over the children after divorce, the woman has the
first right to care (hadana), and the man, the first right to legal repre-
sentation (wilaya). In inheritance law a woman receives half of what a
man in an equal position receives.
The reforms of family law are couched in an Islamic idiom, with ex-
plicit attention to international norms concerning human rights,
132 LÉON BUSKENS

particularly the rights of women and children. The law is an expression

of the political will to enforce social change by giving women and chil-
dren more rights, and of a moderate progressive vision of Islam. The
Mudawwana is moreover an expression of the power of the king as the
highest interpreter of Islamic law, whose will creates law. The meaning
of the new stipulations for daily family life depends to a great extent on
the way in which judges, both men and women, and professional wit-
nesses apply the law. In addition, the conceptions and the behaviour of
ordinary people, for whom the law is merely one of their frameworks
for family life, are also of great importance. The state attempts to set a
clear course for the practicing of family law, but the extent to which it
has succeeded can only be determined through detailed field research.
The inventory of Islamic legal norms as laid down in positive law
leads to the conclusion that Moroccan law only contains a very limited
amount of legal norms derived from classical legal tradition. In
Moroccan law, one finds predominantly politically inspired interpreta-
tions of Islamic law, which have been the subject of an intense public
debate during the past years. There is no increasing islamisation of the
law. On the contrary, the influence of norms derived from classical
Islamic law on state law have further diminished with the 2004
reforms.
Since independence in 1956, Morocco is a member of the United
Nations and party to several key human rights conventions. Morocco
has made reservations to several conventions by invoking Islamic
norms. According to official reports, Morocco does not always suffi-
ciently respect its convention obligations. The regime of the late King
Hassan II was especially characterised by serious violations of human
rights. These were fiercely criticised by foreign organisations – and in-
side Morocco in a more disguised manner. Under the rule of King
Mohammed VI, Morocco attempted to come to terms with the past
through public hearings of the Equity and Reconciliation Commission
(‘Instance équité et reconciliation’). International pressure and the
growing domestic discourse on human rights have had important con-
sequences for the legal system, such as reforms of family law. At the
same time, the makhzan attempts to continue ruling the domestic de-
bate by appropriating the idiom of human rights and civil society.

In this overview I have paid little attention to legal practice, even though
this is of great importance in answering question of islamisation of the
legal system. On the political level, we can conclude that Morocco has
an autocratic system. The constitution prescribes a separation of powers
in a constitutional monarchy, with a democracy and a multi-party sys-
tem. In the past King Hassan ruled Morocco as an absolute ruler who
claimed to know what was best for his country. His function as
SHARIA AND NATIONAL LAW IN MOROCCO 133

commander of the faithful meant for him that he could determine the
scope of Islam and Islamic law. As such, Islam was an instrument to le-
gitimise his regime. At present, King Mohammed VI, political parties,
and social movements appear to strive for a break with the despotism
of the past. The manner in which the progressive reforms of family law
came about is a paradoxical confirmation of the king’s omnipotence
with regard to Islamic law.
During the past centuries, Islam has been an instrument to legiti-
mise as well as to contest political power in Morocco (cf. Munson
1993). The doctrine of jihad served as a means of resistance against
European imperialism in the prelude to the protectorate. The struggle
for independence was focussed on the spreading of a ‘pure’ Islam and
the correct interpretation of Islamic law. Hassan II legitimised his state
structure in Islamic terms, but since the 1980s his most dangerous
critics have also utilised Islamic ideas. From the 1990s islamists have
combined this jargon with a human rights discourse. Leftist and liberal
opponents also refer to human rights in order to defend their views.
The attacks committed by a group of radical islamists in Casablanca in
May 2003 formed a turning point in the debate about Islam, law, and
politics. Until then islamist groups seemed to have profited the most
from the new openness. The king seized upon the general concern and
fear to strengthen his power as ‘commander of the faithful’ and to en-
force a moderate progressive Islam, focussed on the personal inner ex-
perience, instead of political action.
At present, two somewhat related topics dominate the political scene:
Islam and human rights. Moroccans, both ordinary citizens as well as
representatives of the makhzan, use both discourses in order to justify,
but also to criticise, the political system and the prevailing law. With the
new openness that came about in the 1990s, the Islamic discourse has
once again become important for debate in the public sphere. The pre-
viously mentioned marginalisation of Islamic law in terms of positive
law is paradoxically related to the revival of the political significance of
sharia as a means of political opposition. Islamic law is a powerful poli-
tical symbol. It was able to mobilise large groups of people in the strug-
gle for independence. It turns out to be capable to do so again in the
current debate. Islamic law can stand for strongly deviating conceptions
about cultural authenticity that are supported, manipulated, and con-
tested by different factions within society.
The impact of politicisation of sharia on positive law has resulted in
reform of family law in favour of women and children. This reform
took place within an exclusively Islamic framework, in which the term
ijtihad played a key role. In present-day Morocco, discussion about fa-
mily law or political legitimacy is not possible outside this Islamic dis-
course. This predicament is the result of a long historical process. Since
134 LÉON BUSKENS

the beginning of the twentieth century, Islamic law has been margina-
lised in Morocco in terms of substance, yet its significance as a political
tool has considerably increased during the last three decades. The fact
that sharia has nowadays become primarily a political symbol has cre-
ated new tensions between varying factions holding opposing views of
Moroccan society, just rule, and the place Islam should have in it. This
development is by no means unique to Morocco, but fits a more gener-
al pattern that can be discerned in many contemporary Muslim
societies.

Notes

1 Léon Buskens is professor of law and culture in Muslim societies at Leiden

University. He thanks the late Mostapha Naji, the late Robert Rutten, Michèle Boin,
Birte Kristiansen, and Friso Kulk for their help in collecting material, as well as
Baudouin Dupret for his comments on an earlier version. Many thanks to Julie
Chadbourne for her editing of the English text.
2 Abun-Nasr 1987 offers a standard history of the Maghrib. Pennell 2000 gives an
overview of Moroccan history from 1830 onwards. El Fassi Fihri 1997 provides an
overview of the history of the Moroccan legal system as understood by a judge and
diplomat. Sater 2010 provides a recent overview of the present state of Moroccan so-
ciety and politics.
3 Anthropologists who have published on contemporary legal practice in Morocco in-
clude, among others, Bouderbala, Daisy Dwyer, Hammoudi, Mir-Hosseini, Pascon,
Rosen, and the present author.
4 Rodrı́guez Aguilera 1954 offers an overview of the legal system of the Spanish protec-
torate; Zomeño 2002 discusses the views of Spanish colonial scholars on Islamic
law.
5 In the rest of this text I use the translation ‘commander of the faithful’ for this con-
cept, following the title of John Waterbury’s famous analysis of the Moroccan politi-
cal system. In this particular context I adopt a slightly different translation to convey
the existence of a notion of religious unity, which was not identical with a territorial
entity in which the sultan exercised effective political control.
6 The German orientalists Ubach & Rackow 1923 offer an overview of customary law
in Morocco, Algeria, and Tunisia on the basis of interrogations of prisoners of war
from the French colonies taken during the First World War.
7 Rabinow 1989 analyses French ideas about ‘modernity’, also related to colonial policy.
Chapter 9 of his book is devoted to the French colonial policy in Morocco.
8 Examples of this colonial scholarship in action include the bilingual (Arabic and
French) magazine Revue maroccaine de législation, doctrine, jurisprudence chérifiennes
(Droits musulman, coutumes berbères, lois israélites), created in 1935 by Paul Zeys (judge
and former colonial civil servant) and the edition of the Arabic text with a French
translation of Gannun’s (Guennoun) introductory overview of Maliki law as developed
in Morocco by Boris de Parfentief (1958).
9 Zagouri 1961 gives a general introduction to Jewish family and inheritance law as it
was applicable in Morocco shortly after independence. Chouraqui 1950 offers an ex-
tensive overview of the situation during the protectorate. Caillé 1944 (for the French
zone) and Ruiz de Cuevas 1950 (for the Spanish zone) also provide short introduc-
tions to Jewish law during the protectorate period.
SHARIA AND NATIONAL LAW IN MOROCCO 135

10 Government control was further strengthened by a new law and decree, promulgated
in 2006 and 2008, concerning the ` udul (cf. Benyahya 2009). The introduction of
these new rules was related to the family law reform of 2004.
11 Wuerth 2005 analyses the role of women’s organisations in the law reform process.
12 Mir-Hosseini 2007 offers a comparative analysis of recent family law reforms in
Morocco and Iran.
13 Confusingly, present-day currents promoting puritan understandings of Islam are
also often referred to as ‘salafiyya’.
14 The rules governing the work of the `udul have been reformed by a law of 2006 and
a ministerial decree of 2008 in accordance with the 2004 reforms of the family law
(cf. Benyahya 2009).
15 Cf. Jordens-Cotran 2005: 76-93.
16 See summary record of the fortieth session of the Committee on the Elimination of
Discrimination against Women on 24 January 2008, CEDAW/C/SR.824, p. 4, in
which Ms. Skalli, Minister for Social Development, the Family, and Solidarity, one of
the institutions responsible for guaranteeing women’s rights in Morocco, makes this
point that in reality certain reservations had been withdrawn, even if not formally.
17 Amnesty International, Morocco/Western Sahara: Increasing Openness on Human
Rights, press release MDE 29/01/2005 (Public), dated 24 January 2005 and Amnesty
International, Morocco/Western Sahara: Irene Khan acknowledges positive steps and calls
for more progress, statement, dated 23 March 2009 (both last accessed 1 December
2009). For further information on the general human rights situation in Morocco
see e.g. Amnesty International Report 2009, Index: POL 10/002/2009: http://there-
port.amnesty.org/en/regions/middle-east-north-africa/morocco.

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4 Sharia and national law in
Saudi Arabia

Esther van Eijk1

Abstract

Saudi Arabia is an absolute monarchy, ruled by the House of

Saud. It is the cradle of Islam and home to the two holy cities
Mecca and Medina. The first article of the Basic Ordinance (1992)
states that the Holy Qur’an and the Sunna (traditions) of the
Prophet Muhammad are the constitution of the kingdom and that
Islamic shari‘a is the basis of its legal system. The discovery of oil
in the 1930s rapidly changed the country and forced the govern-
ment to adapt and reform, but at the same time it wanted to hold
onto its Islamic character and heritage. This created a split that
until today the Saudi government struggles to repair – how best
to find a balance between adhering to its Islamic principles vis-à-
vis calls for progress and political and legal reform? The king has
made cautious steps toward reform, notably by restructuring the
judiciary in 2007, which is still being put into full effect, and by a
2009 cabinet reshuffle with appointments of moderate ministers,
including a female deputy minister of education, and new leader-
ship for the justice sector. This chapter provides a select overview
of the role of shari‘a in the legal system of Saudi Arabia, both his-
torically and in the present. It should be noted here that Saudi
Arabia is a closed and complex country, which makes it difficult to
gain access to extensive and recent data about the legal system
and the Saudi society at large.2
Table of contents
4.1 The period until 1920. The political-religious Saud-Wahhab
alliance 141
Ibn Saud and Al-Wahhab 141
Prince Abdulaziz al-Saud: Founder of the Saudi nation-state 143
4.2 The period from 1920 until 1965. The formation of the
unified Kingdom of Saudi Arabia 144
Discovery of oil: Impetus for state-building and modernisation 146
4.3 The period from 1965 until 1985. Struggle for Islamic
authority 148
The House of Saud: The legitimate rulers? 149
4.4 The period from 1985 until the present. A religious-political
balancing act – Tensions and reforms 150
The 1992 Basic Ordinance of the Kingdom of Saudi Arabia 151
Violence and political challenges 152
King Abdullah: A cautious reformer 154
4.5 Constitutional law 156
Sources of law 157
Judiciary 158
Shari‘a courts 159
Board of Grievances 161
Judges and lawyers 161
4.6 Personal status and family law 163
Marriage and divorce 163
Related fatwas on marriage 164
Inheritance 165
4.7 Criminal law 166
4.8 Commercial law 167
4.9 International treaty obligations and human rights 168
Convention Against Torture 169
Convention on Discrimination Against Women 169
Human rights violations 170
4.10 Conclusion 172

Notes 176
Bibliography 179
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 141

Saudi Arabia comprises about 80 per cent of the Arabian peninsula. The
kingdom has a population of well over 28 million people, including at least
5.5 million foreign nationals. About 90 per cent of the Saudis are of Arab
ethnicity, the rest being Afro-Asian. Traditionally, Saudi Arabia is a tribal,
nomadic society. Following the discovery of oil in 1930s, especially over the
last fifty years, it has become more urbanised. The migrant workers come
from all over the world, with most from South and Southeast Asia, and
neighbouring Arab countries. According to statistics, all Saudis are Muslim,
of which 90 per cent are Sunni Muslim and around 10 percent are Shi‘ite.
The official language of Saudi Arabia is Arabic.

(Source: Bartleby 2010)

4.1 The period until 1920

The political-religious Saud-Wahhab alliance

In the centuries before the arrival of Islam, rival tribes, both nomadic
and sedentary, dominated the Arabian peninsula, which is predomi-
nantly desert and mountainous terrain, with a few important oasis set-
tlements.3 Caravan routes passed through the more sedentary areas in
the North and along the coastal areas, including the Hijaz, the region
on the Western coast of Arabia, with Mecca as its main commercial cen-
tre. Besides being a prominent trading centre, Mecca housed the Ka‘ba
sanctuary, a site of pilgrimage since pre-Islamic times.4 The Hijaz was
– literally – the place of birth of Islam: the Prophet Muhammad was
born in Mecca around 570 AD, and in 622 he migrated to Yathrib (later
Medina),5 where he died in 632.
Shortly after Muhammad’s death, the Islamic faith rapidly expanded
as Muslims conquered the rest of Arabia and far beyond. Its political
centre, however, quickly moved from the Arabian peninsula to
Damascus in 656, and later to Baghdad in 750. It was not until the six-
teenth century, when the Ottomans6 managed to seize control over
some parts of the Hijaz, that the Arab tribes were forced to submit to
foreign power (Cleveland 2000: 43). Turkish garrisons were stationed
in Mecca, Medina, Jeddah, and other cities. However, the power of the
Ottoman empire was limited, with local tribal leaders and rulers govern-
ing in this region with a great deal of autonomy.

Ibn Saud and Al-Wahhab

In the eighteenth century the situation changed when the political and
religious alliance between the religious scholar and jurist Muhammad
ibn Abd al-Wahhab (1703-1793) and Muhammad ibn Saud (died in
142 ESTHER VAN EIJK

1765) gradually gained ground on the peninsula. Muhammad ibn Saud

was the ruler (amir) of Dir‘iyya, a city north of Riyadh, situated in the
Najd, the central region of the peninsula. Supported by the puritan
movement of Shaykh Ibn Abd al-Wahhab, he conquered large parts of
the Arabian peninsula starting in 1744. Ibn Abd al-Wahhab, also from
the Najd area, advised Ibn Saud on questions regarding religion, law,
and political affairs. Both men shared the goal of establishing a new
state ‘derived from a divine contract based on the Shari‘a. The state,
thus, formed an integral part of religion which was not separate from
politics, nor politics from morals’ (Kechichian 1986: 55).

The ideas of Ibn Abd al-Wahhab formed the ideological basis of the
Saudi kingdom. He sought to return to the time of the Islamic fore-
fathers (salaf), a return to pure Islam.7 To accomplish this, he advocated
the abolition of all innovations that had polluted Islam over the course
of the centuries. He strongly opposed animist practices, Shi‘a and Sufi
practices such as visits to shrines and tombs, and other customs and ri-
tuals so common in eighteenth century Arabia. He emphasised the
monolithic character of Islam and the oneness of God. In his view, cus-
tomary law and indigenous customs contradicting shari‘a had to be
firmly suppressed (Vogel 2000: xvi). Ibn Abd al-Wahhab based his ideas
on the works of the Salafi tradition within Islam, particularly as pro-
pounded by two legal scholars, namely Ahmad ibn Hanbal (780-855),
founder of the Hanbali school of law, and Ahmad ibn Taymiyya (1263-
1328), one of the most prominent scholars of that school.
The Hanbali doctrine traditionally distinguished itself from other
Sunni schools of law by its strict adherence to the holy sources. Hanbali
scholars emphasised a strict dependence on the Qur’an and the Sunna
(teachings and traditions of the Prophet Muhammad) as sources of law
and, unlike other schools of law, minimised resort to consensus (ijma‘)
and analogical reasoning (qiyas) as methods for imparting legal find-
ings. Not only did Ibn Taymiyya seek to revive Ibn Hanbal’s stringent
reliance on the revealed texts in his time, his teachings were also influ-
ential in the relationship between religious and political authority, mani-
fested in the cooperation of Muhammad ibn Saud and Ibn Abd al-
Wahhab and their successors all the way up until today. Ibn Taymiyya
believed that the ruler and the ‘ulama (religious scholars) should work
closely together. The legitimacy of the ruler depended on his adherence
to shari‘a; the ruler himself is also subject to the sacred law and, there-
fore, at least in theory, placed on an equal footing with his subjects. The
‘ulama, for their part, have the obligation to advise the ruler and both
should collaborate to uphold the shari‘a (Vogel 2000: 202-204).
After Muhammad ibn Saud’s death in 1765 his son and subsequent
successors extended the rule of the House of Saud on the peninsula. In
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 143

1803, the governor (sharif) of Mecca was defeated and the Saudi-
Wahhabist alliance conquered the Hijaz. Between 1803 and 1814, other
territories were conquered by the Sauds. Their rule now stretched far
beyond the Hijaz and the Najd towards the eastern coast of the penin-
sula. To administer the newly gained territories, governors and judges
were appointed to cities and villages, representing the rulers from
Dir‘iyya and to implement the basic principles of Islam, including the
collection of religious tax (zakat) (Kechichian 1986: 56). Disputes were
adjudicated by the local ruler or by a single judge (a qadi), appointed by
the ruler, who himself would be the only instance for appeal against the
qadi’s decision, and responsible for the implementation of a qadi’s
ruling.
The Ottomans were alarmed by the Saudi expansion, and, thus, the
Ottoman sultan in Istanbul, Mahmud II, ordered his Egyptian viceroy
Muhammad Ali Pasha to suppress this rebellion on the Arabian penin-
sula. In 1811, Muhammad Ali’s son Ibrahim led the campaign in
Arabia, and Mecca and Medina soon fell into Ottoman hands again.
Seven years later, after a two-year siege, Dir‘iyya was also conquered.
The Ottoman occupation, however, did not last long: in 1824
Muhammad ibn Saud’s grandson Turki ibn Abdullah (1755-1834) ob-
tained hegemony over the Arabian peninsula and made Riyadh the new
capital city.

Prince Abdulaziz al-Saud: Founder of the Saudi nation-state

After the death of his successor and son Faisal in 1865, the Saudi re-
gime suffered from internal strife and civil war. This situation lasted
until the first decades of the twentieth century, when the Saudi prince
Abdulaziz al-Saud, commonly referred to as Ibn Saud (1880-1953), was
able to reunite the various tribes of the Arabian peninsula under Saudi
rule. In 1902, he defeated the rival Al-Rashid clan and in the subse-
quent years he conquered Najd, and in 1925 the Hijaz.
The expansion of what is today the Saudi kingdom is often merely as-
cribed to the eighteenth century Wahhab-Saud alliance, but the role of
Abdulaziz al-Saud should not be underestimated. Like his forefather
Muhammad ibn Saud, he was above all an astute ruler who was able to
successfully play out different tribes against each other and increase his
power base by forming smart alliances, for example with the British
(Kostiner 1993: 6), as will be evident in the following section.
144 ESTHER VAN EIJK

4.2 The period from 1920 until 1965

The formation of the unified Kingdom of Saudi Arabia

After the First World War, the Middle East changed drastically. The
Ottoman Empire collapsed and new states under British and French
mandates now neighboured Saudi Arabia. Abdulaziz faced the difficult
task of maintaining the support of both the more cosmopolitan Hijaz
and his own conservative Wahhabist followers in Najd. He also had to
convince the Islamic world that his Wahhabist rule would not endanger
the holy cities of Mecca and Medina or the tradition of the hajj (the an-
nual pilgrimage), whilst on the other hand ensuring that the new na-
tion-state paid respect to the rules of the new international world order
(Vogel 2000: 281-282).
On 8 January 1926, Abdulaziz was crowned king (malik) of the
Hijaz, adding this title to his existing position as ‘Sultan of Najd and its
Dependencies’. The new king declared that shari‘a was the law of the
land and that all four Sunni schools of law deserved respect (Vogel
2000: 89). In the same year, he promulgated a ‘constitution’ for the
Hijaz (‘the Basic Directives of the Kingdom of Hijaz’), which declared
the Hijaz to be a ‘consultative Islamic State’. The Basic Directives al-
lowed for the formation of a Consultative Council (majlis al-shura) and a
Council of Deputies (majlis al-wukala)8 to be involved in state policy
making, respectively as representative and administrative bodies (Al-
Fahad 2005: 379-380). The Consultative Council was instructed to de-
velop a new judicial organisation for the Hijaz.9
When Abdulaziz conquered the Hijaz in 1925, he found a judicial or-
ganisation influenced by the Ottomans. The Hanafi school was the offi-
cial rite of the Ottoman Empire and had, therefore, been established in
the Hijaz, although most of the Hijazis followed the Shafi‘i school. The
Ottomans had implemented a system of shari‘a courts, the panels of
which were comprised of one Hanafi chief judge and three assistant
judges, one from each school of law (Vogel: 88). In 1927, the king is-
sued a decree stating that the rules of the Ottoman laws would remain
effective up and until they were replaced by new rules. Many ‘ulama,
however, resisted this decision. At a conference held in Mecca that
same year, they issued a legal opinion (fatwa) in which they demanded
the immediate cancellation of any man-made [Ottoman] laws applicable
in the Hijaz and contended that only shari‘a provisions ought to be ap-
plied (Al-Jarbou 2007: 200-201).
Regardless of the reluctant attitude of the ‘ulama towards state-inter-
ference in ‘their’ domain, Abdulaziz adopted a framework for the courts
of the Hijaz in 1927. It was a more elaborate judicial organisation with
multiple-judge courts, which were, most importantly, summary and
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 145

general shari‘a courts, and instances of appeal (Vogel 2000: 89). This
legal system initially only applied to the Hijaz, but between 1957 and
1960 the system was implemented in the rest of the country. Vogel ex-
plains that ‘[i]n this way Abd al-‘Azīz was able to introduce new institu-
tions, gain experience with them, and allow his conservative Najdī
‘ulamā’ a chance to become familiar with them’ before the actual transi-
tion took place (ibid: 283).
In Najd, the Wahhabi homeland, a different judicial system had con-
tinued to exist until the unification in the late 1950s. Traditionally, the
ruler appointed single judges to the major towns, who worked closely
with the local governor (amir). A judge was only involved after the at-
tempts of the governor to resolve a conflict amicably had failed. The
governor would then refer cases to the judge for a ruling according to
shari‘a, and, after judgement, the case would be submitted to the gover-
nor for enforcement if the losing party did not willingly accept the out-
come. Appeals were only possible through complaint to the local ruler,
who would often refer cases to the senior ‘ulama (Vogel 2000: 88)
In the early 1920s all Sunni schools of law resonated in the Arabian
peninsula. In Najd, the Hanbali school of law prevailed, whereas in the
Hijaz, the Shafi‘i and the Hanafi schools of law were both predomi-
nant.10 In 1927, Abdulaziz suggested that a law code based on rulings
of all Sunni schools of law be introduced, but he faced strong resistance
from the Hanbali religious scholars. In the same year, all Hijazi shari‘a
judges were ordered to apply the Hanbali fiqh (Islamic jurisprudence).
Only when this school of law could not provide an answer to a particu-
lar question could one refer to the Hanafi, Shafi‘i, or Maliki schools of
law (Schacht 1982: 87).
The Saudi kingdom promoted itself as the cradle of Islam and, as
such, the guardian of the Holy Sites. Likewise, the Saudi legal system
claimed an age-old, untainted continuity, without interference from
Western rulers. This claim appeared to be justified to a certain extent.
Saudi Arabia, after all, had adopted little to no Western legislation, with
one exception being the Ottoman Code of Commerce of 1850. The
Code, based on the 1807 French Commercial Code, was stripped of all
references to interest and implemented in the Hijaz in 1931 in adjusted
form.11 The ‘ulama, however, resisted the implementation of this man-
made law and the shari‘a courts refused to apply it (Vogel 2000: 285).
In 1932, the Najd region and the Hijaz were joined together and the
current kingdom of Saudi Arabia as a modern nation-state came into
existence. Abdulaziz concentrated on consolidating his rule and estab-
lishing central authority in the kingdom. He proved to be a masterful
tribal politician:
146 ESTHER VAN EIJK

[a]s astute as he was brave, he proved to be a fair and judicious

ruler whose piety, dignity, and accessibility won him the alle-
giance of his subjects […] ruling less as an absolute monarch
than as a first among equals (Cleveland 2000: 227).

The alliance between Ibn Abd al-Wahhab and Muhammad ibn Saud
from the eighteenth century in fact continued: the political and econom-
ic authority was vested in Abdulaziz and his governors; the religious
and, due to the primacy of shari‘a, the legal authority was in the hands
of the ‘ulama, in particular the descendants of Shaykh Ibn Abd al-
Wahhab.12 The ‘ulama were responsible for Islamic education and the
interpretation of shari‘a, and they remained qualified, as specialists on
the Word of God, to give the ruler advice (fatwa) on any relevant topic.

Discovery of oil: Impetus for state-building and modernisation

In 1938, oil was discovered on the peninsula, which had long been a
poor region. The young Saudi kingdom thereby obtained a stable source
of income and after the Second World War the country rapidly changed
into a prosperous nation. In several areas, new legislation was promul-
gated to keep up with the economic developments and to advance the
transformation of Saudi Arabia into a modern nation-state.
According to the Wahhabi doctrine, based on Ibn Taymiyya’s theory,
rulers were competent to promulgate necessary legislation for govern-
ment policy (siyasa shar‘iyya), provided it was complementary to and not
in contradiction with shari‘a and served public interest. In modernising
Saudi Arabia this legislation was often termed ‘royal decree’ (marsum)
or ‘ordinance’ (nizam). It should be noted here that the term nizam (or-
dinance or regulation) is used deliberately as distinct from the term qa-
nun (law), and is a term commonly used to refer to codified man-made
law; many Saudi ‘ulama consider it to be a Western concept and alien
to Islamic shari‘a. In addition, the term ‘regulatory authority’ is used in
lieu of ‘legislative authority’ because the latter term can only be used to
refer to God, the only legislature (Al-Jarbou 2004: 14 n. 31). This is im-
portant to bear in mind when looking at the effects of the new regula-
tions on the judicial structure. From the 1930s onwards, many specia-
lised tribunals or ‘committees’ to adjudicate matters in certain areas,
such as labour law and commercial law, were created to apply the new
regulations, under the supervision of a particular ministry. The Tariffs
Committee (1953); the Committee for Commercial Paper Disputes
(1963); and the Committee for the Settlement of Labour Disputes
(1969) are just a few examples. The king was forced to create these spe-
cial tribunals because the ‘ulama opposed the new man-made legisla-
tion and the shari‘a judges refused to apply it (Vogel 2000: 286).
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 147

The most important new judicial institution – an administrative court

called the ‘Board of Grievances’ – was created in 1955. This Board heard
and investigated complaints filed by Saudi citizens against government
officials and agencies; it directly reported to and advised the king, who
should take the final decision on the complaint. Initially, the Board was
also authorised to investigate complaints against shari‘a court judges
(Al-Jarbou 2004: 25).13
King Abdulaziz died in 1953 and left behind a united kingdom with a
central government, a set of administrative legislation, and a remo-
delled judicial system. The Saudi royal family firmly held onto its
power: Abdulaziz was succeeded in rule by his sons Saud (1953-1964),
Faisal (1964-1975), Khalid (1975-1982), Fahd (1982-2005), and Abdullah
(2005-present).

Unlike his father, King Saud was not a competent head of state. His ex-
travagant lifestyle led the kingdom to the brink of bankruptcy. His reign
coincided with the emergence of the secular pan-Arab nationalism of
the Egyptian president Gamal Abd al-Nasser (1956-1970). Nasser chal-
lenged the Islamic Saudi kingdom by calling for a socialist revolution
that would shake the ‘feudal’ monarchy (Niblock 2006: 58). The royal
family felt threatened and isolated by Nasser’s success, and countered
by starting a worldwide campaign to spread Wahhabi Islam. In 1962,
for example, the Saud family founded the Muslim World League in
Mecca to promote ‘Islamic unity’ and to further advocate the Wahhabist
version of Islam (Kepel 2004: 52). According to the Saud family, the ex-
port of Islam is a holy duty: Saudi Arabia is, after all, the birthplace of
Islam and remains the guardian of the holy cities. In the 1950s and
1960s, thousands of Egyptian Muslim Brothers fled to Saudi Arabia,
where they were offered political asylum. They played an influential role
in the rise of radical Islamist thought among a segment of the Saudi
population, which became even more evident in the 1970s (ibid: 51).
In November 1953, a month before his death, the then King
Abdulaziz had ordered the establishment of a Council of Ministers.
However, it took King Saud until 1958 to promulgate a regulation for
the Council of Ministers, laying down the regulatory authority of the
government. It granted the council authority to formulate policies re-
lated to domestic, foreign, financial, economic, and all public affairs.
The regulation determined that an ordinance (nizam) could only be pro-
claimed by royal decree when it had been approved by the Council of
Ministers, and would only become effective after it had been published
in the official government gazette. The ‘ulama had no formal role in
this legislative process, but they were usually consulted in order to en-
sure that a nizam was in accordance with shari‘a (Vogel 2000: 289).
148 ESTHER VAN EIJK

As of 1957, King Saud embarked on implementing the abovemen-

tioned unification of the judiciary throughout the entire kingdom.
Three years later both systems were united under the ‘Presidency of the
Judiciary’ located in Riyadh. With some amendments, the Hijazi system
was now applicable to the entire kingdom. The ‘Presidency of the
Judiciary’ remained responsible for many religious and legal matters,
such as the issuance of fatwas, supervision of religious education, and
appointment of persons in important religious positions, until it ceased
to exist in 1975 (Vogel 2000: 91-93).
In 1964, on the family’s initiative, King Saud was replaced by Crown
Prince Faisal, who proved himself to be a more capable statesman and
politician than his predecessor.

4.3 The period from 1965 until 1985

Struggle for Islamic authority

King Faisal introduced a series of far-reaching reforms, in areas such as

finance, education, health care and, last but not least, the legal system.
From 1970 to 1975 the national court system was further developed and
formalised in the Judiciary Regulation of 1975. The ‘Presidency of the
Judiciary’ ceased to exist; its tasks were assigned to new institutions,
among which were: the Supreme Judicial Council, the Council of
Senior ‘Ulama, and the Ministry of Justice (established in 1970) (Vogel
2000: 92-93, 108). From then on, the courts fell under the administra-
tive competence of the Ministry of Justice. The shari‘a judges, however,
had long since been very independent and were suspicious of any state
interference. Until today, the government has been unable to completely
subdue the shari‘a scholars’ and judges’ suspicion and sometimes bold
opposition to the state regulations, as will be discussed below.
The Judiciary Regulation (1975) granted general jurisdiction to the
shari‘a courts to adjudicate in all civil and criminal disputes except in
the areas of law where the specialised committees were competent. The
law provided a new set-up for the judicial organisation and introduced
the Supreme Judicial Council. This council, operating under the direct
authority of the king, formed the top of the judicial pyramid, with ap-
pellate courts in Riyadh and Mecca, and larger and smaller courts
spread all over the country., The specialised committees, however, fell
outside the formal judicial system; they fell within the scope of the ex-
ecutive branch. The Supreme Judicial Council was granted judicial, ad-
ministrative, and regulatory authority. Besides its supervisory role over
the shari‘a courts, the Council could establish general principles and
precedents that had to be followed by the courts. Moreover, the Council
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 149

could give opinions about issues upon request of the king, the Council
of Ministers, or the Minister of Justice (Al-Jarbou 2004: 21 n. 77).
In 1971, King Faisal set up the Council of Senior ‘Ulama with the
primary task of providing advice to the king and his government. The
council has played a crucial role in the development of government pol-
icy since that time (Jerichow 1998: 68).
King Faisal instigated the oil embargo in 1973 in reaction to Western
support for Israel during the 1973 Yom Kippur War against Egypt and
Syria. Oil prices quadrupled as a result of this embargo. Faisal used the
abundant oil revenues to finance a broad modernisation programme.
He generously invested in education. He founded religious and secular
universities, and thousands of Saudis went abroad to study, especially to
the United States. Consequently, a new highly-educated elite emerged,
bringing with them a great deal of knowledge and expertise from
abroad. Members of the extensive royal family, however, retained the
important governmental positions, although some commoners were
successful in gaining access to the political arena.14 Save some excep-
tions, most Saudis outside the royal family had to be satisfied with civil
service positions, albeit with generous compensation and status. Several
new ministries, such as the Ministries of Commerce and of Industry
and Electricity were created to administer the bursting economic and
commercial development (Niblock 2006: 48-49).

The House of Saud: The legitimate rulers?

Alongside this modernisation, Saudi Arabia retained its position as the
guardian of Islam, with the Saud family as righteous rulers based on
the Qur’an and shari‘a. King Faisal claimed that a constitution was un-
necessary because ‘Sa‘udi Arabia […] has the Quran, which is the oldest
and most efficient constitution in the world’ (Cleveland 2000: 445).
Whereas Faisal still made efforts to modernise the country, many ‘ula-
ma frequently opposed these changes. In 1960, for instance, he sug-
gested that public education for girls be introduced, but he faced heavy
resistance from the ‘ulama establishment. He eventually succeeded, but
only because he allowed the ‘ulama a supervisory role. This enabled the
‘ulama to have a significant influence on the content of the curricula
and to ensure the separation of sexes in the classrooms. On a more
general note, the ‘ulama also maintained public order in society with
the help of the religious police, officially called the ‘Committee for the
Promotion of Virtue and the Prevention of Vice’. This religious police
guaranteed – and still guarantees – the enforcement of Islamic rules of
conduct in the public domain, such as dress codes and the closing of
restaurants and shops during prayer time, segregation between the
sexes, and the non-propagation of religious beliefs by non-Muslims. As
150 ESTHER VAN EIJK

such, the Saudi ‘ulama retained an important and influential role in the
state in return for their support to the royal family as ‘legitimate
Islamic rulers’ (Cleveland 2000: 446).
King Faisal was murdered by one of his nephews in 1975; he was suc-
ceeded by his brother Khalid. King Khalid was an inexperienced ruler
and delegated much of his power to Crown Prince Fahd. In the 1970s
Saudi Arabia soared to great heights. Modernisation in the areas of edu-
cation and health care improved the lives of many Saudis. This, how-
ever, could not ward off the emergence of young radical Islamists. On
20 November 1979, five hundred dissidents led by Juhayman al-Utaybi
attacked the Holy Mosque in Mecca. Al-Utaybi claimed that the Saud fa-
mily had lost all their legitimacy as a result of widespread corruption,
their decadent behaviour, and their imitation of the West. These accusa-
tions were similar to those raised successfully by Khomeini against the
shah of Iran the very same year. The attack was also aimed at the Saudi
‘ulama, who in the eyes of Al-Utaybi let themselves be used for political
purposes by the Saud family. The authorities were completely surprised
by the attack. Two weeks later, on 5 December 1979, the assailants were
finally overpowered and later executed. A fatwa from the Council of
Senior ‘Ulama later justified the use of violence by the authorities
(Kechichian 1986: 60).
The Saudi regime eyed the success of the Iranian revolution led by
the Shi‘ite leader Ayatollah Khomeini with suspicion. Again large sums
of money were invested to spread Wahhabi Islam, this time as a coun-
terweight against the Shi‘ite revolution. The Saudi regime contributed
millions to the building of thousands of mosques, Islamic centres, and
schools all over the world (Ottaway 2004).15
In June 1982, King Khalid died of a heart attack; he was succeeded
by his brother Fahd who later added the title ‘Custodian of the Two
Holy Mosques’ to his name.16

4.4 The period from 1985 until the present

A religious-political balancing act – Tensions and reforms

In August 1990, Iraq invaded neighbouring Kuwait. King Fahd, with

the support of the Council of Senior ‘Ulama, gave permission to the sta-
tioning of foreign, mostly American, troops on Saudi territory as part of
the military operation ‘Desert Storm’ in order to liberate Kuwait
(Cleveland 2000: 465). Large expenses as a result of the First Gulf War
(1990-1991) and a sharp decline in oil revenues following the drop in
oil prices in the 1980s had a detrimental impact on the Saudi economy.
Social services could no longer be financed and employment opportu-
nities declined. The deteriorating economic situation and the
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 151

permanent presence of American troops led to a growing dissatisfaction

among the population. Vogel writes:

With the Gulf War, pressure […] mounted perhaps because

Saudis were dismayed to observe that the king and a few of his
family made, all alone, the stupendous decision to invite non-
Muslim, non-Arab powers into the kingdom to wage war on a
sister Arab country (2000: 295).

In 1990, a group of businessmen, academics, and journalists submitted

a petition for political reform. They asked for the creation of a new con-
sultative council, equality among all citizens, more freedom of the
press, and an improvement in the position of women. Later that year,
on the 6th of November, forty women drove in a convoy of cars through
the streets of Riyadh in protest against the existing convention that pro-
hibited women from driving cars. This protest, however, had the oppo-
site effect: the government not only punished the women involved, but
it also proclaimed a formal law forbidding women to drive cars.
On the other side of the social spectrum, traditionalists called for
stricter observance of shari‘a and a greater role for the ‘ulama in deci-
sion-making processes. More radical Islamists, often young Saudis
from an urban middle-class background, claimed that the regime failed
to observe Islamic tenets. They blamed the government for being cor-
rupt and incompetent, worsened by the increasing Western influence
and Saudi dependence on the West (Cleveland 2000: 477-478).

The 1992 Basic Ordinance of the Kingdom of Saudi Arabia

Faced with domestic pressure for change, King Fahd felt compelled to
introduce political reforms. On 1 March 1992 he promulgated the
‘Basic Ordinance of the Kingdom of Saudi Arabia’, the ‘Ordinance of
the Consultative Council’, and the ‘Ordinance of the Provinces’.17
Together, these three laws formed the first ‘codified’ constitutional fra-
mework for Saudi Arabia.18 In an interview three weeks after the intro-
duction of the Basic Ordinance, King Fahd clearly stated that it was not
Saudi Arabia’s intention to transform the country with these ordinances
into a Western democracy:

The democratic system that is dominant in the world is not a

suitable system for the people of our region. Our peoples’ make-
up and unique qualities are different from those of the rest of
the world. We cannot import the methods used by people in
other countries and apply them to our people. We have our
Islamic system, which is based on consultation (shura) and the
152 ESTHER VAN EIJK

openness between the ruler and his subjects before whom he is

fully responsible.19

Article 1 of the Basic Ordinance declares that the Qur’an and the Sunna
are the constitution of the country. Al-Fahad, a Saudi lawyer, noted that
the Basic Ordinance reflects ‘[t]he codification of the status quo of essen-
tially unbridled executive power’ with the Qur’an and the Sunna ‘as the
only substantial constraint on executive power’ (2005: 385-386). The
Ordinance appears to separate the executive, regulatory, and judicial
authorities (Art. 44), but the same article concludes by declaring that
the king ‘shall be the final resort of these authorities’ (Tarazi 1993:
264).

Nonetheless, the Basic Ordinance met the petitioners’ demand for a

new consultative council (majlis al-shura), replacing the one that was es-
tablished in 1926. The 1992 Consultative Council was entitled to lay
down regulations and bylaws to meet the public interest, in accordance
with the principles of the Islamic shari‘a. The Council originally con-
sisted of sixty members, all appointed by the king, for a period of four
years. Membership of the Council has increased several times: first in
1997 and later in 2005, bringing today’s total number of members to
150. Seated in the Council are ‘ulama, academics, businessmen, and
diplomats, mostly men who have been educated at universities abroad.
In November 2003, the competence of the Council was somewhat ex-
panded; the Council is now permitted to initiate legislation without
prior approval from the king. The Council’s influence over legislation
and policy has steadily increased, as its legislative proposals have been
invariably adopted by the King, and they have, on more than one occa-
sion, taken a bold stand against government efforts to impose taxes and
fees (Al-Fahad 2005: 392).

Violence and political challenges

King Fahd’s attempts to introduce reforms were, however, unsuccessful
in quietening the voices of either the Islamists or reform-minded liber-
als. Young Islamists in particular insisted that the Saudi monarchy
should enforce the Islamic norms more strictly. In the 1990s radical
Islamists attacked foreign targets within Saudi Arabia. In June 1996,
for example, a truck bomb near an American military compound near
Dhahran killed nineteen persons and wounded hundreds of people.
The government reaction forced radical Islamists to move to other
countries, such as Sudan and Afghanistan. The most famous example
was the militant political dissident Osama Bin Laden, who was stripped
of his Saudi nationality (Al-Rasheed 2007: 114).
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 153

The news that fifteen out of the nineteen terrorists of the 11

September 2001 attacks in the United States were Saudi Arabia na-
tionals shocked many in the West as well as at home. Under pressure
from the West, King Fahd openly started a war on terrorism and de-
clared that terrorism is prohibited within Islam. Muslim terrorism,
however, also continued to hit Saudi Arabia itself. In May 2003, a series
of coordinated suicide attacks were carried out on Western residential
compounds in Riyadh, killing 35 and wounding another 194 persons.
Since then, the number of clashes between security forces and armed
militants, as well as attacks on Western targets and oil companies, have
increased in frequency and magnitude (Al-Rasheed 2007: 135-136).
In addition to violence and political tensions, the kingdom has also
been faced in the last decades with enormous debts, trade deficits, and
a massive population growth. Indeed, the population has increased by
more than fifty per cent in the last twenty years. While previously the
state had been able to use oil revenues to invest in social services, the
costs were now becoming too high. The existing gap between rich and
poor also continued to grow, and the unemployment rate among Saudi
nationals, especially among the younger generation, skyrocketed, with
reported estimates as high as 20 to 30 per cent (Raphaeli 2003: 22-23).
These enormous unemployment figures were of particular concern gi-
ven that there were – and still are today – approximately six million mi-
grant workers in Saudi Arabia. The government announced measures
to reduce unemployment, for example by making it compulsory for em-
ployers to employ Saudi nationals for certain positions (ibid).20
In the early 2000s, several demonstrations and other public actions
calling for political reform were organised. The authorities usually
ended the demonstrations prematurely by arresting the participants.
From the year 2000 onwards, Saudi citizens, individually and collec-
tively, began to more frequently express their discontent by way of an-
other tool for participation provided for by the Basic Ordinance law of
1992, namely the right to petition the king or the crown prince on any
particular issue of citizen concern (Art. 43). In January 2003, for exam-
ple, a significant number of Saudi elite submitted a petition called ‘A
Vision for the Present and Future of the Homeland’ to the then Crown
Prince Abdullah. The petitioners called for an independent and re-
formed judiciary, the creation of human rights institutions, improve-
ment of the rights of women, and a popular election of the Consultative
Council (Al-Fahad 2005: 392-393). By March 2004, however, several pe-
titioners, political activists and lawyers were arrested and put in prison.
Three intellectuals were sentenced to between six and nine years’ impri-
sonment for incitement to sedition, and for disobedience to the ruler.
The petitioners’ demands for political participation were partially
met. In October 2003, local elections were announced for one-half of
154 ESTHER VAN EIJK

the seats in the municipal councils, the other half reserved for appoint-
ment by the government. The elections were held in the spring of
2005, resulting in a success for conservative candidates, who were
backed by the ‘ulama.21 The influential ‘ulama obstructed the participa-
tion of women in the elections by both banning them from running for
election and also preventing them from voting in the actual elections.
Various highly placed officials, however, expressed the opinion that, if it
were up to them, women should be able to participate in the next elec-
tions. The president of the election committee explained in interviews
later that the reason for refusing women to vote was that there was in-
sufficient time to make the necessary arrangements to enable them to
participate in the elections.22

King Abdullah: A cautious reformer

Crown Prince Abdullah, King Fahd’s half-brother, owing to the king’s
bad health, had been the actual ruler of the Saudi monarchy since
1995. When on 1 August 2005 King Fahd finally died, Abdullah for-
mally succeeded him as king.23 Immediately he pardoned the above-
mentioned petitioners of 2004, who were released from prison
(Amnesty International 2009b: 14). This confirmed his image as the
driving force behind the reforms of the last decade. In 2003, for exam-
ple, he had founded the ‘King Abdul Aziz Centre for National
Dialogue’, an institute tasked with the organisation of national confer-
ences at which religious leaders of the different Muslim sects, aca-
demics, and other prominent opinion leaders could discuss various con-
temporary topics. Within its first two years of operation, the institute or-
ganised five national dialogue sessions, where the conferees openly
discussed issues related to reform in education, religious pluralism, the
role of women in a modern Islamic state, and political participation of
citizens. The government-sponsored debates did not turn out to be as
fruitful as probably hoped for by many Saudis and were instead seen as
being a ‘public-relations exercise envisaged to absorb public frustration
and anger’ (Al-Rasheed 2007: 15).
In line with its reform policies, the government authorised the estab-
lishment of two Saudi human rights organisations, in 2004 and 2005,
respectively: 1) the National Society for Human Rights (NSHR), a gov-
ernment-funded organisation; and 2) the Human Rights Commission
(HRC), an official governmental body. The NSHR has been modestly
active in pursuing reports and complaints about human rights abuses,
submitting, for instance in 2007, a critical report to the government on
prison conditions.24 According to Amnesty International, both organisa-
tions ‘have contributed to raising the visibility of human rights within
Saudi Arabia and have assisted the government in preparing its reports
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 155

on human rights to international treaty monitoring bodies’ (Amnesty

International 2009b: 11).
Earlier, in 2000, the government had enacted a regulation on Shari‘a
Procedure, applicable to proceedings before all Saudi courts, not just the
shari‘a courts. A year later, two other regulations were issued, namely the
Criminal Procedure Regulation and the Legal Practice Regulation. The
2001 Regulation on Criminal Procedure stipulates that no punishment
may be inflicted except for crimes prohibited by shari‘a principles and
Saudi national regulations. It contains provisions concerning prelimin-
ary detention and rules and procedures of evidence. The law also guaran-
tees the right to seek assistance of a lawyer and includes a prohibition on
torture, mental coercion, and arbitrary arrest. Responsibility for the in-
vestigation and prosecution of alleged crimes was vested in the Bureau
of Investigation and Prosecution (Al-Hejailan 2002: 276-277).
Although the Saudi government has been praised for taking the
abovementioned steps, which can be considered as steps towards the
rule of law, critics do not have high hopes for any significant progress
on the human rights situation on the ground. International human
rights organisations such as Amnesty International and Human Rights
Watch continue to criticise Saudi Arabia’s poor human rights record.
The list of accusations is long: human rights violations linked to the
war on terror; discrimination against foreign workers and Shi‘ite mino-
rities; discrimination against women; violation of the freedom of reli-
gion and the freedom of expression; unfair trial standards; and the im-
position and execution of corporal punishments in violation of interna-
tional legal standards.
This being said, in December 2005, Saudi Arabia became a fully-
fledged member of the World Trade Organisation (WTO), and with this
came obligations, expectations and promises of judicial reform.
Consequently, two years later, on 2 October 2007, King Abdullah issued
two royal decrees announcing reform of the judiciary, a new Judiciary
Regulation and a new Board of Grievances Regulation. The regulation
on the judiciary, still being fully put into place at the time of writing,
announced among others the establishment of a Supreme Court and se-
parate tribunals for personal status, criminal, labour, and commercial
cases. In accordance with the reforms, the Supreme Court is to take
over the judicial functions of the Supreme Judicial Council. The new
Board of Grievances Regulation provides for a further elaboration of the
organisation of the Board, including the creation of an Administrative
Judicial Council and a Supreme Administrative Court. The new judicial
system was to be implemented during a transition period of two to
three years (Ansary 2008), supported by a separate budget of 1.87 bil-
lion U.S. Dollars allocated for the upgrade of judicial facilities and the
provision of training for judges.
156 ESTHER VAN EIJK

In February 2009, King Abdullah issued a number of additional royal

decrees that amounted to a reshuffling of the major judicial, religious,
and other authorities. Among those appointed were: several moderate
ministers, including a new Minister of Justice, a first female deputy
Minister, for Education, new chairmen to the Consultative Council, the
Council of Senior ‘Ulama, the Supreme Judicial Council, the Board of
Grievances, and the ‘Committee for the Promotion of Virtue and the
Prevention of Vice’.25

4.5 Constitutional law

According to Article 1 of the Basic Ordinance of the kingdom of Saudi

Arabia (1992):

The Kingdom of Saudi Arabia is a sovereign Arab Islamic state

with Islam as its religion; God’s Book and the Sunnah of His
Prophet, God’s prayers and peace be upon him, are its constitu-
tion, Arabic is its language and Riyadh is its capital. 26

The Qur’an and the Sunna have the highest authority and all legislation
is subordinate to them, including the Basic Ordinance itself (Art. 7).
The Ordinance consolidates the vast authority of the king, his wide
range of functions and privileges, and declares that succession of the
king is restricted to the male descendants of the founding king,
Abdulaziz al-Saud, but that the king has the authority to choose and re-
lieve his apparent heir (Art. 5).27 According to Article 44, the legislative,
executive, and judicial powers of government are separate, but the king
is not subject to this separation of powers. The king is ‘their final
authority’ and, therefore, a constitutional court is considered unneces-
sary (Al-Fahad 2005: 385). As the legislative authority and in accordance
with Article 67 of the Ordinance, the king can promulgate regulations
(nizams) where shari‘a does not provide a direct answer to certain legal
questions, but where regulation is nevertheless necessary, such as in
commercial matters. This regulatory authority corresponds to Ibn
Taymiyya’s theory on Islamic leadership: rulers are allowed to issue reg-
ulations necessary for government policy (siyasa shar‘iyya), provided the
legislation serves the public good and that it only complements, and
certainly does not contradict, shari‘a.
The king of Saudi Arabia is also the chairman of the Council of
Ministers and the Prime Minister, and as such he is the head of the ex-
ecutive branch of government. He appoints and relieves his ministers
and other high-ranking civil servants by royal decree (Art.s 56-58).
Decisions taken by the Council of Ministers have to be ratified by the
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 157

king. He oversees the implementation of shari‘a and the general policies

of the state (Art. 55). The king appoints and dismisses judges upon re-
commendation of the Supreme Judicial Council, and he acts as the high-
est instance of appeal and has the power to pardon (Art.s 50 and 52).
The Consultative Council (majlis al-shura), re-established in 1992,
confers with and advises the Council of Ministers (Art. 68). It advises
on government policy and may submit regulations and bylaws to meet
the public interest or to remove what is bad in the affairs of the state,
in accordance with the basic principles of the Islamic shari‘a (Art. 67).
However, the Consultative Council has limited authority and does exert
little direct influence on the decision making. Al-Fahad notes that ‘[l]egi-
slation adopted by the Council is conceived as mere advice that the so-
vereign is at liberty to accept or disregard’ (2005: 388). Schwartz is of
the opinion that the creation of the Consultative Council was merely a
‘cosmetic reform’ (2005: 38).

Sources of law
The Islamic shari‘a is the prevailing law in Saudi Arabia; the sacred law
is the foundation of the legal system. As such, the Qur’an and the
Sunna are the main sources of law. Judges and other legal scholars
(‘ulama), as the lawful interpreters of the two holy sources, apply the
Islamic shari‘a in rendering a judgement or advice (fatwa) on individual
cases brought before them. Because shari‘a in Saudi Arabia is not codi-
fied in statutes or codes, the traditionally trained judges and scholars,
therefore, resort to Hanbali fiqh-books in particular in their administra-
tion of justice.
It is often claimed that Saudi law is nothing but Islamic shari‘a.
However, supplemented by government-issued regulations concerning
labour, commerce, companies, and so forth, the law is more encom-
passing than at first glance. Also, one cannot rule out the importance of
tribal values and customs in Saudi society, like in most Middle Eastern
societies. Esmaeili writes: ‘Tribal law or custom is significant in Saudi
Arabia in relation to the country’s political and governmental structure
as well as private and personal law areas’ (2009: 18). Yet, Islamic shari‘a
is no doubt the main feature of the Saudi legal system,
In addition to the shari‘a and specialised courts, Saudi Arabia’s legal
system structurally includes a form of court-recognised mediation of-
fered by Islamic scholars who provide advice (muftis). The mufti28 has
an important role to play in providing Islamic legal interpretation.
When a person wants to know which shari‘a principles and rules are
applicable in a specific situation, he or she can turn to a mufti for advice
(a fatwa). A court trial can be avoided when two parties agree to bring
their dispute to a mufti they both respect. Opinions of these religious
158 ESTHER VAN EIJK

scholars are often considered as authoritative as a ruling of a judge. In

fact, when parties, after obtaining a fatwa, still decide to refer their case
to a judge in the courts, the judge may well attribute legal value to the
fatwa. Amicable settlement is the preferred solution for any dispute,
either with or without interference of a judge. According to Vogel, over
90 per cent of all civil cases that are submitted to the court are resolved
by reconciliation or settlement, thereby ‘obviating the judge’s ruling al-
together’ (2000: 120).
Fatwas are also issued by the Council of Senior ‘Ulama, established
in 1971.29 Next to this official institution, King Fahd appointed the con-
servative and opinionated Shaykh Abdulaziz ibn Baz (died 1999) as the
Grand Mufti of Saudi Arabia in 1993.30 His opinions often deviated
from the prevailing consensus of the religious establishment, particu-
larly on marriage-related matters.31 The courts consider legal actions
based on such fatwas to be valid, even if they contradict the courts’ own
standard rules (Vogel 2000: 8). Yamani writes that fatwas issued by in-
fluential government-employed ‘ulama have ‘a near-legislative effect’
and that ‘ordinary qadis (judges) [are] unwilling to contradict a formal
fatwa’ (2009: 140). The king, for his part, often reinforces these fatwas
by requesting the courts to observe and comply with the judgment or
advice rendered by either the Council or the Grand Mufti (Vogel 2000:
116).
Another source of law for legal judgements is administrative regula-
tions (nizams) that have been legitimised through the abovementioned
principle of siyasa shar‘iyya. These regulations have a clear subordinate
status as compared to the fiqh, even though the ‘ulama are usually ex-
tensively consulted and often enjoy a veto power in the drafting pro-
cess.32 Thus, the main reference for a judge remains the Islamic juris-
prudence: ‘Fiqh continues to govern the bulk of cases, covering perso-
nal status, civil contract, tort, property, agency, and nearly all crimes
apart from those that specifically enforce the nizāms.’(Vogel

2000: 175).

Judiciary
Article 48 of the Basic Ordinance determines that ‘the courts will apply
the rules of the Islamic Shari'ah in the cases brought before them, in
accordance with what is indicated in the Book, the Sunnah, and the or-
dinances decreed by the Ruler which do not contradict the Book or the
Sunnah.’33 Article 46 bolsters the authority of judges in its assertion
that the judiciary is independent.
The Basic Ordinance confirms the existence of two judicial branches
– the general shari‘a courts and the Board of Grievances – but is silent
on the specialised committee courts. The shari‘a courts are granted gen-
eral jurisdiction, unless these disputes or crimes fall under the
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 159

jurisdiction of the Board.34 The special committees created to imple-

ment the nizams fall outside the judicial branch; they are ad hoc admin-
istrative entities falling within the executive branch. The ‘ulama have of-
ten opposed the creation of these special committees and have fre-
quently called for the incorporation of these jurisdictions into the
shari‘a courts. However, since the shari‘a courts have clearly demon-
strated they do not want to apply the nizams, the government has until
present not considered unification a viable option (Vogel 2000: 176).
Not only do the courts disregard the regulations per se, they also pay no
attention to, and certainly do not respect, the jurisdiction of the com-
mittees created to apply these regulations. Indeed, shari‘a judges often
hear cases outside their competence as they are reluctant to dismiss a
case on grounds that it falls within the jurisdiction of a specialised com-
mittee (Al-Jarbou 2007: 226).
As mentioned earlier, in October 2007, judicial reforms were an-
nounced by King Abdullah (see 4.4). These reforms had been expected
since Saudi Arabia joined the World Trade Organisation in 2005. At the
time of writing, it cannot yet be indicated when the judicial reforms will
be fully implemented and what the impact and consequences will be on
the judicial organisation. Questions that still remain are, for example:
What will happen to the specialised committees? Will they still exist, al-
beit in a stripped-down form? If so, will they continue to function in
parallel to the new tribunals? Or, alternatively, will they be abolished all
together?

Shari‘a courts
According to the new Judiciary Regulation (2007), there will be three le-
vels of shari‘a courts all operating under the supervision of the
Supreme Judicial Council, in ascending order: first instance courts, fol-
lowed by appellate courts, and finally the new Supreme Court. Since
the new system is not yet fully operational, the current system will be
described below, with reference to some important changes foreseen in
the new judicial organisation.
At present, there are three levels of shari‘a courts, all of them falling
under the responsibility of the Ministry of Justice, in ascending order:
two types of first instance courts (the summary courts and the general
courts), followed by appellate courts, and finally the Supreme Judicial
Council.
In a summary court, a single judge is competent to rule in both civil
and criminal cases. He is, however, not competent to judge in civil
cases where the penalty would exceed a certain amount of money (for
example in cases of compensation for physical injury) or in criminal
cases that involve possible sentences of amputation, execution, or
160 ESTHER VAN EIJK

stoning (Judiciary Regulation (1975), Art.s 24-26). Cases that cannot be

adjudicated by a summary court are heard by a general court. Criminal
cases that could result in a sentence of amputation, execution, or ston-
ing to death are judged by panels of three judges (Judiciary Regulation
(1975), Art. 23). According to Article 20 of the new Regulation (2007),
all criminal cases will – in principle – be judged by panels of three
judges.
Appeals may be made to the appellate courts in Mecca or Riyadh,
where – in principle – three-judge panels adjudicate cases.35 An appeals
court may reverse a decision, amend it, order a retrial, or send the case
back with instructions on how the lower court should proceed. The ap-
pellate courts’ primary concern is to establish whether or not a decision
is in compliance with shari‘a (Al-Ghadyan 1998: 239-240). In principle,
appeals are not admissible against a decision of an appellate court, but
many cases – and always those involving the death penalty or amputa-
tion sentences – are currently referred to the Supreme Judicial Council
for review (Judiciary Regulation (1975), Art. 8).
It is anticipated that this judicial function of the Council will be
transferred to the Supreme Court (in formation) (Judiciary Regulation
(2007), Art. 11). The king, however, retains his placement at the top of
the judicial pyramid in that before an execution of a death penalty, ston-
ing, or amputation can be carried out, the punishment has to be ratified
by the king (Basic Ordinance, Art. 50; Regulation on Criminal
Procedure (2001), Art. 220).
According to the most recent Judiciary Regulation (2007), a new first
instance court system will be established, creating separate tribunals for
general, criminal, personal status, commercial, and labour cases (Art.
9). These tribunals will replace the current first instance courts – the
summary and general courts. The shari‘a courts will, thus, lose their
general jurisdiction to hear all cases. The new system seems to resem-
ble modern judicial systems of countries like Egypt and Morocco more
than the classical Islamic legal system, where a single judge pro-
nounced judgment without appeal, apart from recourse to the ruler.
Another fundamental difference in the new court structure and
planned operation is that each province will have at least one appellate
court (Art. 15). As the system is currently set up, each appellate court
has a criminal chamber, a personal status chamber, and a chamber for
‘other’ cases (Judiciary Regulation (1975), Art. 10). Once the new judi-
cial system is operational, though, each appellate court will also have a
chamber for commercial cases and a distinct chamber for labour cases
(Judiciary Regulation (2007), Art. 16). This appeals system corresponds
with the new first instance courts system. Jurisdiction over cases that
are now heard by the various special committees, for instance in the
field of commercial and labour law, will be transferred to the new first
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 161

instance and appellate courts (Ansary 2008). Once full implementation

of the judicial reforms of 2007 takes effect, the Supreme Court will be
the highest authority in the outlined judicial organisation, and will also
be comprised of specialised chambers headed by three- or five-judge pa-
nels, depending on whether the case may result in imposition of the
death penalty or other severe punishments (Judiciary Regulation
(2007), Art. 10; Ansary 2008).

Board of Grievances
The Board of Grievances constitutes the second judicial branch of the
Saudi system. Due to its strong fiqh credentials, the Board is largely re-
spected by the ‘ulama (Vogel 2000: 232). This independent organ,
which reports directly to the king, functions as an administrative tribu-
nal, hearing complaints against the government. Next to its function in
administrative law, it is – currently – also competent to hear commercial
cases and criminal cases involving, for example, forgery and bribery.
At present, the Board operates as the court of appeal for decisions of
some of the specialised committees, and it has the authority to enforce
foreign judgments and arbitration decisions (Board of Grievances
Regulation (1982), Art. 8). Until recently, the appeal function of the
Board was not clearly defined and, therefore, ambiguous as to how it
operated in practice (Tarazi 1993: 266).36 Once the new Regulation, is-
sued in 2007, is implemented, it is hoped that this situation will
change, providing more clarity on this point.
The new Board of Grievances Regulation (2007) will entail the transfer
of the Board’s commercial and criminal jurisdiction to the general court
system, where the new first instance and appellate courts will take over
these competences. The new Regulation also announces the creation of
an Administrative Judicial Council and a Supreme Administrative
Court.37 In the new judicial system, the Board will continue to hear ad-
ministrative disputes involving government agencies (Art. 13).

Judges and lawyers

According to classical Islamic doctrine, a judge (qadi) has a religious
duty to settle a dispute brought before him: in each individual case he
is allowed to use independent interpretation (ijtihad) in order to find
the most desirable solution. He may disregard previous judgments,
either his own or those of other judges, in this process.
A single judge in Saudi Arabia has great discretionary authority in ad-
judicating cases: ‘he is empowered to exercise his personal Islamic un-
derstanding and interpretation without recourse to previous decisions
relating to similar cases’ (Yamani 2008: 139). Yamani further explains
162 ESTHER VAN EIJK

that, because of the absence of a system of judicial precedent, diverging

judgements of otherwise apparently identical cases are the result of ‘dif-
ferences in interpretation and legal orientations of the judges, and geo-
graphical variations between the different politically unified regions in
the Kingdom’ (ibid: 140).
Only graduates of the shari‘a colleges can be appointed judges at the
shari‘a courts and on the Board of Grievances.38 The traditional shari‘a
training, with a focus on Hanbali fiqh, is provided by several Islamic
universities in the kingdom. Because the shari‘a colleges have always ta-
ken a passive attitude towards teaching the nizams enacted by the gov-
ernment, new law departments were recently established. But, gradu-
ates from these latter colleges cannot be appointed as shari‘a judges.
The members of the specialised committees which apply the nizams
are usually appointed by a minister, for example the Minister of
Commerce. Because they are part of the executive branch, they do not
enjoy judicial immunity and independence. They are often professional
experts appointed by the ministries and regarded as civil servants, not
experts in Islamic law (Al-Jarbou 2007: 224).

In the past, lawyers were considered unnecessary, especially because of

the active role judges have in the resolution of cases, as compared to
other legal systems. Saudi judges wished to directly deal with the ac-
cused, since ‘[t]he truth is brought to light through [the accused], be-
cause he is more aware of himself than is any other’ (Vogel 2000: 161,
quoting a Saudi judge). It was reported that sometimes judges consid-
ered lawyers to be an obstacle to truth-finding and a hindrance to recon-
ciliation between the litigants (Commission on Human Rights 2003:
10-11). Moreover, it has often been argued that even though a defendant
is not defended by a lawyer, the shari‘a itself offers the necessary protec-
tion; judges are, after all, morally obliged to find the truth.
Despite these objections, a professional class of lawyers has emerged
in Saudi Arabia. There are two sorts of lawyers active at present, namely
lawyers admitted to the shari‘a courts and appearing on behalf of clients
in some civil cases and experts in the field of commercial law, who are
very commonly seen appearing in the specialised committees (Vogel
2000: 161). In family matters in particular, individuals are, however,
still almost always represented by a (male) family member, in accor-
dance with local traditions.
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 163

4.6 Personal status and family law

The Saudi personal and family law is not codified or compiled in a law
code.39 All cases concerning marriage, divorce, inheritance, and the sta-
tus of children fall under the general jurisdiction of the shari‘a courts.
For the most part judges of these courts resort to the Hanbali fiqh books
when adjudicating a case; they can, however, also consult books from
the other schools of law.

Marriage and divorce

Although the Hanbali school of law is generally considered the most
conservative of the schools of law, this does not hold true for the stipu-
lations concerning the contract of marriage, as for any type of contract.
In contrast to the other schools, classical Hanbali fiqh gives considerable
leeway towards validating and enforcing stipulations that modify the
normal marital rights and duties between husband and wife, in particu-
lar stipulations that safeguard the wife’s position (Coulson 1964: 190).
Marriage in Islamic law is a contract of exchange between a man and
a woman, concluded in the presence of two witnesses. A bride and
groom have the right to include stipulations in their marriage contract.
Non-compliance with a stipulation constitutes a ground for pursuing
dissolution of the marriage in court. For example, a clause can be in-
cluded in the contract that provides that when the man marries a sec-
ond wife, the first wife has the right to initiate divorce proceedings. In
such a case, it is possible that the husband has granted the wife his
right of repudiation (talaq); she can then repudiate herself because the
husband broke the marriage contract.
When a marriage is concluded without such stipulations, the wo-
men’s possibilities to obtain a divorce are limited. A woman can ask
her husband to divorce her in exchange for waiver of her financial
rights (divorce by mutual consent, or khul‘), namely return of any dower
and other remaining financial rights. A woman can seek judicial divorce
(tafriq) when harm (darar) is inflicted upon her by her husband, which
is interpreted as any harmful conduct of the husband (physical or men-
tal) that makes conjugal life between the couple impossible. For exam-
ple, if the husband does not fulfil his obligation to support his wife; if
he is not capable of conjugal relations due to a physical or mental han-
dicap; or if he is absent for a long period of time.
In practice, however, it is very difficult for a woman to obtain judicial
divorce in Saudi Arabia. She has to prove that harm was inflicted upon
her by her husband, quite a challenge in the closed patriarchal Saudi so-
ciety. Moreover, in the event of divorce, the mother will lose her right to
care for her children, specifically her son(s) from the age of seven and
164 ESTHER VAN EIJK

her daughter(s) from the age of nine, after which time physical custody
is automatically transferred to the father40 (Human Rights Watch 2008:
31).
Men, on the other hand, are in a far better position to end a mar-
riage. Husbands are granted the unilateral right to repudiate their wives
(talaq), without reason or legal justification; talaq divorce is effective im-
mediately. After an irrevocable repudiation, the repudiated wife can
claim the full dower (if a portion of it remained unpaid) and mainte-
nance during a period of waiting following the repudiation (four
months and ten days).

Related fatwas on marriage

Some startling fatwas on family law topics, issued by members of the
established ‘ulama, are worth mentioning here. In April 2005, the
Grand Mufti Abdulaziz al-Shaykh stated that forced marriages are
against shari‘a and that persons who are guilty of this offence must be
punished with imprisonment. In his opinion, forced marriages were
the reason why the divorce rate in the country continued to rise, a topic
that has increasingly gained public attention (as has the issue of early
marriages). Media reports suggest that 50 per cent of marriages end in
divorce, with rates as high as an estimated 62 per cent in the western
region.41 In July 2008, the chairman of the Committee for Family
Affairs of the Consultative Council, Dr Talal Bakri, said the Council is
considering implementing a law to halt the rising divorce rates, in parti-
cular to curb the practice of husbands arbitrarily divorcing their wives.
Yet, the same Grand Mufti was quoted in the Saudi media last year as
having said that ten or twelve-year-old girls are marriageable (Human
Rights Council 2009: 15). It should be noted here that this statement is
all the more problematic given that there is no law in Saudi Arabia that
sets a minimum age of marriage for males or females.
In 2006, a fatwa, issued by the international Islamic Fiqh
Academy42, stirred public debate about so-called ‘ambulant (misyar)
marriages’, both inside and beyond the kingdom. The main feature of a
misyar marriage is that spouses agree the wife will continue to live with
her parents, thus freeing the husband of his obligation to provide mari-
tal domicile for her. It may not come as a surprise to learn that misyar
marriages are often concluded by polygamous men. Women’s rights
groups oppose these marriage practices because the wife waivers her
rights to maintenance and housing, whereas the man’s exemption from
his responsibilities towards his wife are not replaced by any other con-
tractual consideration or reciprocal duties. In 1996, however, the then
Grand Mufti Abdulaziz ibn Baz had already issued a fatwa in which he
attributed Islamic legality to ambulant marriage practices, provided that
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 165

the marriage meets the main prerequisites (i.e. presence of the bride’s
guardian and two witnesses) and the contract is concluded on mutually
agreed upon and binding conditions.43

Again, this shows the importance of a fatwa, which in this case is, ac-
cording to Arabi, ‘a straightforward endorsement of the Muslim polyga-
mous legal tradition’, aiding ‘Saudi citizens in the search for solutions
to their modern sexual and emotional dilemmas, solutions that would
be in line with their faith and its legal strictures’ (2001: 166). It should
be noted here that this ‘solution’ is not only adopted by men, but also
by Saudi women who might prefer being married, so they enjoy a more
‘respectable’ social status and might have more freedom to pursue their
own interests in life, such as studying or working.
Yamani says in a study written exclusively on this topic that the in-
crease in wealth of many Saudis, due to oil revenues, has led to an in-
crease of the practice of polygamy, especially among the educated, ur-
ban Hijazi elite (2008: 215). However, the Saudi government has also
played a significant role in promoting polygamy. Yamani contends that
the promotion of polygamy in Saudi Arabia is part of a public policy
programme promoting the return to Islamic values, in reaction to post-
revolutionary, pro-polygamy Iranian practices. Iran’s reinstatement of
Islamic values and traditions induced Saudi ‘ulama to accept novelties
such as misyar marriages as legally valid (ibid: 47-48).44 In 2001 the
Grand Mufti Abdulaziz al-Shaykh called upon all Saudi women to ac-
cept the concept of polygamy as part of the ‘Islamic package’, further
noting that polygamy is a necessity in ‘the national fight against the
time bomb […], the growing epidemic of spinsterhood’ (ibid: 52).

Inheritance
Islamic shari‘a is the only applicable law pertaining to Saudi Muslims
in matters of inheritance and bequests. The Islamic inheritance system
is based on tribal customary law of pre-Islamic Arabia, which was modi-
fied by the Qur’an in considerable detail (Coulson 1964: 15). The
Qur’an guarantees fixed portions of the deceased’s estate to so-called
‘Qur’anic heirs’.45 Generally speaking, female heirs are entitled to half
of the share of male heirs. After the Qur’anic heirs have received their
shares, the residue of the estate will be divided among the agnatic46
heirs of the deceased. Finally, a Saudi Muslim can dispose a maximum
of one-third of his property by bequest to non-Qur’anic heirs
(Haberbeck 2010: 29).
166 ESTHER VAN EIJK

4.7 Criminal law

The Regulation on Criminal Procedure (2001) governs criminal pro-

ceedings and secures and protects the rights of the accused. It is the
country’s first criminal procedure law and contains provisions borrowed
from Egyptian and French law (Ansary 2008). Substantive criminal law,
however, remains uncodified; as in family law, judges commonly apply
the Hanbali fiqh.
Criminal law comprises three categories, namely hudud (fixed
Qur’anic punishments for specific crimes), qisas (retaliation, as in ‘an
eye for an eye’), and ta‘zir (discretionary punishment of the judge). The
rules of evidence and penalties for hudud crimes are laid down in the
Qur’an and the Sunna. There are strict requirements for establishing
proof for a conviction of a hadd offence. For example, if the accused re-
vokes his confession, alleging that he was forced into confession, the
case must be dropped. The case can then be tried as a ta‘zir case, and
the accused, if found guilty, will then be given a discretionary sentence
instead of the severe hadd penalty. Because of the stringent require-
ments for hadd convictions, most cases are tried as ta‘zir cases (Vogel
2000: 244-247). Unlike in many other Islamic countries, punishments
like death by stoning, amputation, and flogging are actually executed; in
the case of death penalty or amputation this requires the approval of
the king (see 4.5).
The qisas claim is technically a civil claim in cases involving murder
or the infliction of bodily harm, which may be prosecuted by the victim
or the victim’s heir. The penalties that may be claimed for a qisas crime
include retaliation in kind or compensation (diya, i.e. blood money). As
for the penalties for ta‘zir offences, the judge has great discretionary
power, since there is no substantive penal legislation. The most com-
mon ta‘zir punishment is lashing. Vogel mentions that public humilia-
tion, cuffing, imprisonment, and fines – although the latter is debated –
are other possible ta‘zir penalties. The death penalty, however, can also
be inflicted as a ta‘zir punishment for crimes such as sorcery and pro-
pagandising for heresy (Vogel 2000: 248-249).
Nowadays, many ta‘zir offences are defined by national regulations
(nizams), including offences of bribery, counterfeiting, drug abuse, traf-
ficking, and crimes committed by officials. These offences are tried be-
fore the specialised committees; penalties for such crimes typically in-
clude imprisonment and fines (ibid: 232).
The king may exercise his discretion to pronounce a sentence ‘in
cases where the offender’s guilt is beyond doubt and public interest de-
mands execution (normally, when the crime is heinous); or when the
offender, usually because he is a confirmed recidivist, can only be pre-
vented by death from further harming society’ (Vogel 2000: 250).
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 167

These sentences are decreed without any formal trial, although often le-
gitimised by the leading ‘ulama.
Besides the traditional fiqh, the opinions of the Council of Senior
‘Ulama constitute legal sources on certain matters of criminal law. The
‘ulama, for instance, issued a fatwa on 18 February 1987, that states that
drug dealers are to be sentenced to death:

With regard to the narcotic smugglers, the punishment will be

the death sentence as a result of his evil work by bringing a
great deal of corruption and deterioration to the country. The
smuggler and the person who receives narcotics from abroad
will be punished in the same way (Jerichow 1998: 74).

The king and the Ministry of Interior have requested that the courts fol-
low this fatwa. The Council of Senior ‘Ulama also decided that a person
should be sentenced to death when he is found guilty of having perpe-
trated a terrorist act (ibid: 75).

4.8 Commercial law

Business or commerce is another area which in Saudi Arabia is exten-

sively regulated by shari‘a. Basic principles of shari‘a oppose various
forms of interest (riba) and of uncertainty in contracts (gharar). Saudi
commercial law remains at its root Hanbali fiqh; jurisdiction in com-
mercial matters rests with the Board of Grievances, whose judges are
chiefly or entirely shari‘a-trained.47 Still, with regard to any modern in-
stitution of commercial law, such as commercial paper, companies with
artificial personality and limited liability, intellectual property, and secu-
rities, Saudi law stems entirely from modern regulations,48 which are
often administered by specialised committees.
For foreign investors, uncertainties surrounding the content of Saudi
commercial law, especially as to its fundamental shari‘a component,
causes various problems and insecurities. This situation is, of course,
highly disadvantageous for the Saudi economy. Yet, to date, the govern-
ment has not been able to find a suitable solution for this problem in
the face of the unwillingness of the ‘ulama and shari‘a judges to cede
control over an area where historically shari‘a has held sway.
Saudi Arabia is a huge market for Islamic financial products, and
some of the biggest Islamic banks are Saudi banks. It does not, how-
ever, actively encourage a separate Islamic banking sector. To allow
some banks to call themselves ‘Islamic’ would indicate that the others
are not, an unacceptable situation in a state that upholds shari‘a as its
basic law (Vogel & Hayes 1998: 12). According to Vogel, Saudi Arabia’s
168 ESTHER VAN EIJK

attitude towards Islamic banking seems to be relenting, since it has

authorised a number of banks to operate on Islamic principles without
including the descriptor ‘Islamic’ in their names, and, conversely, al-
lowed conventional banks to also open ‘windows’ for Islamic products
and services. Some government-owned corporations have even begun
issuing sukuk (Islamic bonds), something that would traditionally not
have been permissible as bonds typically involve interest-based
constructions.49
The religious alms tax (zakat) laid down in the Qur’an is enforced by
the state on Saudi citizens with regard to several forms of personal
wealth such as on livestock, personal and financial properties, as well
as, and perhaps more importantly, ownership shares in companies.50
Zakat on company wealth is calculated and paid by each company on
behalf of its Saudi shareholders. Companies also pay income tax with
respect to the proportion of their non-Saudi ownership.51
In 1999, a Supreme Economic Council was established, charged with
introducing and overseeing economic reform in the kingdom. Attached
to this Council is an Advisory Commission that has a mandate to re-
view economic policies and laws upon government request. It is also
authorised to propose legislation and to make policy recommendations
(Al-Fahad 2005: 392). In preparation of its membership of the World
Trade Organisation, achieved in 2005, Saudi Arabia has further updated
and extended its commercial law regulations.52

4.9 International treaty obligations and human rights

The Basic Ordinance addresses the protection of human rights in a gen-

eral manner. Article 26 stipulates: ‘The state protects human rights in ac-
cordance with the Islamic Shari’ah.’53 This formulation allows the Saudi
government extensive freedom of interpretation and does not safeguard
compliance with internationally recognised criteria, even more so be-
cause shari‘a is uncodified and open to different interpretations.
In 1948 Saudi Arabia was one of the few countries that abstained
from voting on the Universal Declaration of Human Rights (UDHR).54
Saudi Arabia particularly objected to the article concerning freedom of
religion and advocated that the safeguard provided by shari‘a with re-
gard to human rights has priority over any safeguards for human rights
that the UDHR could offer. Saudi Arabia invoked the same arguments
in the 1970s, again refusing to sign other important human rights trea-
ties, such as the ICCPR. More recently, however, the government has af-
firmed its intention to accede to this convention.55
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 169

Convention Against Torture

On 23 July 1979, Saudi Arabia ratified the Convention Against Torture
(CAT). The ratification, however, was accompanied by two significant
reservations. The first reservation stated that Saudi Arabia does not re-
cognise the jurisdiction of the CAT Committee with regard to investiga-
tion into alleged practices of systematic torture. Secondly, Saudi Arabia
refused to refer cases to the International Court of Justice if disputes
were to arise out of interpretation of the convention, when said disputes
could not be resolved through other negotiation and arbitration chan-
nels. Evidently, Saudi Arabia does not wish to open itself up to interfer-
ence or investigation by foreigners and/or international agencies.
In 2002, the Committee Against Torture commented on the national
report submitted by Saudi Arabia. The Committee expressed its con-
cern about the sentencing and execution of corporal punishments, dis-
crimination against foreigners, and the unbridled powers of the reli-
gious police. The representative of Saudi Arabia replied to this with the
following statement:

Corporal punishment was intended as a deterrent: under

Shariah law, it should not be administered if there was any
doubt about the guilt of the individual or the evidence in the
case. The aim was not to punish but to rehabilitate and to pro-
tect society. […] The Koran set out specific sanctions such as am-
putation, flogging (whipping) and stoning for certain crimes.
Those sanctions could neither be abrogated nor amended since
they emanated from God.

Another member of the Saudi delegation further remarked during the

2002 session that: ‘The Committee […] presumed to impugn 1,400-
year-old religious beliefs in Saudi Arabia. It was not within the
Committee’s mandate to do so.’ At the time of writing, Saudi Arabia
had still to submit its second and third periodic reports for Committee
consideration, due in 2002 and 2006, respectively.56

Convention on Discrimination Against Women

On 7 July 2000 Saudi Arabia ratified the Convention on the Elimina-
tion of All Forms of Discrimination Against Women (CEDAW), but here
too, it made two critical reservations to the convention. The first reser-
vation states that Saudi Arabia is under no obligation to observe the
convention when any term of the convention is considered to be in
contradiction with the norms of shari‘a. The second reservation as-
serts that the kingdom is not to be bound by Articles 9(1) and 29(1),
170 ESTHER VAN EIJK

which means in practical effect that Saudi Arabia does not grant men
and women equal rights with regard to the nationality of their chil-
dren (a child automatically receives the nationality of the father) and
that the country is not prepared to refer cases involving a dispute on
interpretation of the Convention to the International Court of Justice.
Because the first reservation makes de facto every treaty obligation sub-
ordinate to the Saudi interpretation of shari‘a, several European coun-
tries made formal objections to the reservations. They questioned Saudi
Arabia’s commitment to the object and purpose of the Convention and
asserted, moreover, that its reservation contributes to undermining the
foundation of international treaty law.
The CEDAW Committee examined Saudi Arabia’s initial and second
periodic report in January 2008. A recurring topic in the discussion be-
tween the Committee and the national delegation was the concept of
male guardianship over women. The Committee noted with concern
that ‘the concept of male guardianship over women (mehrem), although
it may not be legally prescribed, seems to be widely accepted; it severely
limits women’s exercise of their rights under the Convention […]’. The
Committee further opined in its concluding observations that:

[the concept of male guardianship] contributes to the prevalence

of a patriarchal ideology with stereotypes and the persistence of
deep-rooted cultural norms, customs and traditions that discri-
minate against women and constitute serious obstacles to their
enjoyment of their human rights.

Human rights violations

Despite Saudi Arabia’s international human rights obligations, the ac-
tual human rights situation has remained worrisome on a variety of le-
vels. Political parties and syndicates are prohibited, and the Saudi media
are under heavy censorship. Human rights activists and peaceful critics
of the government are routinely arrested, many remaining in prison for
lengthy time periods without limitation. Moreover, their chances of get-
ting a fair trial are slim.
Corporal punishments, including death by public beheading, hanging
or stoning, have been administered regularly; foreign nationals, mostly
migrant workers, have been especially vulnerable. Suspects have been
convicted for murder, rape, homosexuality, apostasy, sorcery, drug-re-
lated charges, and other offences. The number of executions in 2007
increased considerably as compared to previous years. In that year at
least 158 persons were executed, compared to the 39 persons executed
in 2006, and in 2008 at least 102 persons were put to death (Amnesty
International 2009).
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 171

Especially, women’s behaviour in public is closely monitored and im-

proper behaviour can have severe consequences. In 2007, a court case
caused considerable commotion, both inside and outside Saudi Arabia;
a rape victim was sentenced upon appeal to 200 lashes and six months
imprisonment. The married woman had travelled in a car with an unre-
lated man when they were attacked by a group of seven men who raped
her and her male acquaintance. They were both sentenced for the crime
of ‘illegal mingling’ (khalwa).57 A month after the verdict, however,
King Abdullah pardoned the woman. Commenting on the pardon, the
then Minister of Justice, Abdullah bin Muhammad al-Shaykh, stated
that the king did not question the court’s decision, but that he had acted
in the interest of the people.58

Women face various forms of discrimination; they are barred from vot-
ing, driving, and travelling without permission of their male guardian.
In addition, Saudi women are severely limited in their ability to exercise
their legal capacity in matters pertaining to marriage, divorce, child cus-
tody, and property control. In April 2008, Human Rights Watch pub-
lished a report highlighting the many human rights abuses resulting
from male guardianship policies.59
Saudi Arabia is known for being a gender-segregated society: women
and men are segregated in schools, universities, health care, and at
work. This segregation limits women’s educational and employment op-
portunities. While legally women have the right to choose their own
education, open a business, perform financial transactions, and inherit
without a male guardian’s approval, the reality is that they face major
obstacles. For instance, women cannot obtain a professional licence to
practice as a lawyer, architect, or accountant (Yamani 2008: 152).60
Nevertheless, there are also some signs of a trend toward more equality
– select female entrepreneurs have set up their own businesses; a few
women have been elected into chambers of commerce; and, in
February 2009 for the first time in history, a woman was appointed
Deputy Minister of Education for Girls.
The country also restricts the freedom of religions other than Sunni
Islam. Shi‘ites have been particular targets of slander campaigns and vio-
lence – also at the hands of state actors. In recent years, they have been se-
verely restricted in their religious practices, and there are reported cases of
forced conversions of Shi‘ites to Sunni Wahhabism. This pertains not only
to Saudi Shi‘ites, but also to Asian (Islamic) migrant workers.61
Apart from the abovementioned human rights violations that have of-
ten been justified by reference to ‘the shari‘a’, it must be noted that in
recent years, thousands of people have been arrested and detained in
the name of security and counter-terrorism. The trials which have ap-
parently begun in spring 2009, are so shrouded in secrecy that it is
172 ESTHER VAN EIJK

impossible to follow their progress or know to what extent the accused

are able to enjoy a fair trial (Amnesty International 2009b: 5).
Finally, human rights organisations such as Amnesty International
have repeatedly been denied access to the country, despite promises on
behalf of the government in the media. In response to the accusations
of human rights violations, the Saudi regime has continued to stress
the special Islamic character of the country, which in their view requires
a different social and political order as a result of its special religious
position and tradition (Halliday 2003: 138).

4.10 Conclusion

Saudi Arabia not only has a unique legal system, compared to

Western systems, but also compared to other Muslim countries. The
Saudi model is perhaps closest to the classical form of shari‘a adher-
ence and application which developed after the establishment of Islam
on the Arabian peninsula in the early seventh century. Today, fourteen
centuries later, uncodified shari‘a is still the mainstay of the national
legal system. The Basic Ordinance of the Kingdom (1992) in its first
article stipulates that ‘God’s Book and the Sunna of the Prophet’ are
the Saudi constitution.

Saudi Arabia is an absolute monarchy, ruled by the House of Saud. The

country is in fact governed by some one hundred princes, all of whom
are descendants of King Abdulaziz al-Saud (died 1953). They occupy key
positions, including ministerial posts, military, diplomatic, and governor
posts in the provinces.
While the revealed law has always been – and remains – the general
law of the land, the government also issues important ‘regulations’.
However, Islamic jurisprudence remains the first point of reference in
cases concerning personal status, crime, civil contracts, property, etc.
Judges have resorted primarly to the Qur’an, the Sunna, and fiqh-books
in their quest for justice. A judge – like all religious scholars – must be
competent to interpret the Qur’an and the Sunna in rendering a judg-
ment or advice. He enjoys great discretionary power and is not bound
by doctrine of precedent. Religious scholars are also permitted to give
their opinions on the application of shari‘a by giving legal advice (fat-
wa). Fatwas are of legal importance in Saudi Arabia and judges take
them into consideration.
To understand the present law and governance situation of Saudi
Arabia, we need to go back into the country’s history, its key alliance be-
tween political and religious leadership, and the genesis of the Wahhabi
ideology of the state.
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 173

The eighteenth century alliance between the chieftain, Muhammad

ibn Saud and the religious scholar, Muhammad ibn Abd al-Wahhab,
both from Najd, was the initial impetus for the formation of the state of
Saudi Arabia. Ibn Saud won the loyalty of several tribes and united
them into a powerful force; he was greatly aided in this endeavour by
the religious teachings of Ibn Abd al-Wahhab. Followers of the Wahhabi
sect sought to return to the early days of Islam through strict adherence
to the letter and spirit of the Qur’an and the Sunna. Backed by the
Wahhabi movement, the house of Saud conquered large parts of the pe-
ninsula and the Wahhabi doctrine became the ideological foundation of
the future state.
The Saud hegemony was firmly established in 1926 when Abdulaziz
Al-Saud was crowned king of the Hijaz, the region around Mecca and
Medina. In 1932, the Najd and the Hijaz were united into the current
kingdom of Saudi Arabia.
The traditional Najd had a judicial system where a single judge ap-
plied the rules of Hanbali fiqh under supervision of the local ruler. The
cosmopolitan Hijaz, where the Shafi‘i and the Hanafi schools of law
were predominant, had a more modern judicial organisation, which
was developed under Ottoman rule. It took until 1960 before a single,
unified system of shari‘a courts applicable to the entire country could
be implemented. The powerful conservative ‘ulama, especially those
from Najd, have remained resistant to state interference in religious af-
fairs, and therewith also in legal affairs. This is why Abdulaziz and his
successors had to proceed with great caution in centralising and reform-
ing the legal system.
The use of discretionary power by Saudi kings has been particularly
important for the enactment of necessary regulations in the commercial
sector following the discovery of massive oil reserves in 1938.
Technically, under classical shari‘a, rulers have the authority to promul-
gate regulations for government policy (siyasa shar‘iyya), provided they
are complementary to, and not in contradiction with, shari‘a and they
serve the public interest. Nevertheless, the ‘ulama have also remained
reluctant towards the abovementioned regulations, issued by the state
to govern, in particular, commercial and labour affairs. As the ‘ulama
opposed the regulations and the shari‘a judges refused to apply them,
the king was forced to created committees in specialised areas to apply
the new regulations. Together with the Board of Grievances, (1955) an
administrative court which is competent to hear complaints from citi-
zens against the government, in addition to commercial and some spe-
cified criminal cases, these committees have in fact become a second
branch of the judicial system, even though they are regarded formally
as part of the executive.
174 ESTHER VAN EIJK

From 1970 to 1975, the unified court system was further developed.
The Judiciary Regulation (1975) granted general jurisdiction to the
shari‘a courts to decide in all civil and criminal disputes, except in the
areas of law where the specialised committees were competent. A
Supreme Judicial Council, under the direct authority of the king, took
its place at the top of the judicial pyramid, with appellate courts in
Riyadh and Mecca, and larger and smaller courts spread all over the
country.
Meanwhile the ‘ulama’s position, as advisors on government policies,
was further institutionalised in 1971 with the establishment of the
Council of Senior ‘Ulama. This council has since successfully curbed
several reform efforts made by the government and liberal Saudis, for
instance in relation to the improvement of the position of women.
Improved living standards for Saudis, due to the abundant oil reven-
ues in the 1970s, were unable to ward off dissident voices that turned
against the state, claiming that the Sauds had lost their legitimacy as
righteous rulers because of the extravagant lifestyles of some of its
princes, corruption, and their alliance with the West. Internal uprisings
coincided with the Iranian revolution led by Ayatollah Khomeini in
1979. The Saudi regime eyed the Shi‘ite revolution with suspicion and
responded in part by intensifying Wahhabi missionary work abroad.
After all, Saudi Arabia was the cradle of Islam and the guardian of the
two holy places: Mecca and Medina.
In the following decade, the royal family was confronted with another
challenge, namely the financial and political consequences of the First
Gulf War (1990-1991) and the temporarily decreased oil revenues.
Reliance on U.S. political and military support, and the lack of political
participation prompted growing criticism within society. From the
1990s onwards, several groups, including reform-minded liberals, but
also radical Muslims, submitted petitions to the king asking for political
reform.
Under domestic and international pressure, King Fahd implemented
several constitutional reforms in 1992. He promulgated the Basic
Ordinance of the Kingdom, which stipulates that ‘God’s Book and the
Sunna of the Prophet’ are of the highest authority and all legislation is
subordinate to it.
Another demand of the petitioners met by King Fahd was the estab-
lishment of a new, partly elected, Consultative Council. The council was
created in 1992 and now counts 150 members of different social strata,
who are empowered to lay down regulations in the public interest and
in accordance with shari‘a. For the time being, however, the Council
has little actual power and it cannot yet be seen as a fully-fledged parlia-
mentary body.
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 175

The modest reforms of the government did not silence the voices of
the opposition. Young Islamists have committed bloody attacks against
foreign targets since the 1990s, and various radicals were banned from
the country, including Osama Bin Laden. The government has also had
to contend with the fact that the vast majority of the 11 September ter-
rorist attackers (fifteen of the nineteen) were Saudi nationals. Despite
the government openly declaring war against terrorism, radical
Muslims continue to carry out attacks against Western targets and other
‘infidels’ – on Saudi soil as well as in occupied Iraq.
Meanwhile, the process of legal reform continued. Since the late
1990s, several new laws were promulgated, including, for example, the
Regulation on Criminal Procedure (2001) and the Legal Practice
Regulation (2001), both of which aim to regulate criminal proceedings
and better safeguarding the procedural rights of the accused. While the
1975 judicial organisation is still in operation, substantial reforms were
announced in autumn 2007. The 2007 Judiciary Regulation establishes
a Supreme Court and new first instance and appellate courts compris-
ing special chambers for personal status, criminal, labour, and commer-
cial law matters. Once fully functional, the Supreme Court is to take
over the judicial functions of the Supreme Judicial Council. A new
Board of Grievances Regulation, also promulgated in 2007, announces
the establishment of an Administrative Judicial Council and administra-
tive courts of appeal. As of the time of writing, it cannot yet be indi-
cated what the outcome of the announced reforms will be. For now,
duality in the Saudi legal system seems to remain a typical feature.
Although the legal reforms have been welcomed by international or-
ganisations and human rights groups, the criticism on the human
rights situation in Saudi Arabia has not died down. In particular, the
following issues have generated vehement criticism both domestically
and abroad: the extremely disadvantaged position of women; discrimi-
nation against religious minorities and foreigners; a lack of religious
freedom and freedom of expression; torture in prisons; intimidation by
the religious police; the execution of cruel corporal punishments, such
as beheading, stoning, hanging, amputation, and lashing; and increas-
ing frequency of the use of the death sentence; in 2008 at least 102 per-
sons were executed.
The current King Abdullah, like many leaders, seems to be walking a
thin line between reform-minded liberals, conservatives, international
pressure, civil society groups, and the ‘ulama. He has carefully opened
channels for more political participation. Given that he has to reckon
with the conservative ‘ulama and traditional forces within his own fa-
mily, it is anticipated that Saudi Arabia will, in moving forward – within
the realm of Islam – do so at a slow pace.
176 ESTHER VAN EIJK

Notes

1 Esther van Eijk is a PhD Candidate at Leiden University in the Netherlands. This
study is based on a study first published in Dutch (Barends & van Eijk 2006). The
original study, translated into English by A. Saab, has been extensively revised by
Esther van Eijk, who assumes full responsibility for the content of this work. The
author wishes to thank Prof. Frank Vogel for his many valuable comments and sug-
gestions on earlier drafts of this study. Thanks are also due to Prof. Baudouin
Dupret, Prof. Jan Michiel Otto, and Dr. Nadia Sonneveld for their editorial
comments.
2 This chapter is for the most part based on secondary sources of information. The
scope of the study requested did not allow for a comprehensive analysis or field-based
research on the topic.
3 It must be noted here that in the South-Western part of the peninsula early dynasties
did exist; the Kingdom of Saba (or ‘Sheba’) in present-day Yemen is the best known
example (930 BC–115 BC).
4 The Ka‘ba is the focal point of Islam. Muslims pray in the direction of the Ka‘ba in
Mecca, and the shrine is one of the most important sites of the yearly pilgrimage
(hajj). In pre-Islamic times, the Ka‘ba served as a temple for the numerous gods who
were worshipped by the Arab Bedouins (Cleveland 2000: 7).
5 This event, the hijra (emigration), marks the beginning of the Islamic calendar.
6 The Ottoman Empire conquered large parts of the Arab world in the sixteenth cen-
tury: Damascus in 1516, Cairo in 1517, Algiers in 1520, Baghdad in 1534, Tripoli in
1551, and Tunis in 1574.
7 Wahhabis are, thus, also called puritans or Salafis.
8 In 1953, the Council of Deputies was replaced by the less powerful Council of
Ministers (Al-Fahad 2005: 380).
9 This Hijazi Council remained in existence until 1992, when it was replaced by a new
Consultative Council, but had little actual power (Vogel 2000: 282-283).
10 Followers of the fourth Sunni school of law, the Malikis, could also be found on the
peninsula. Accordingly, Maliki rules can still be found in the current legal systems of
Kuwait, Bahrain, and the United Arab Emirates.
11 See Schacht 1982: 87. A new commercial court with jurisdiction over the Hijaz re-
gion had been established in 1926. It was abolished in 1955 because of the imminent
national process of unification of the legal system (Vogel 2000: 302). Al-Jarbou
writes that the commercial court in Jeddah was abolished because of the influence of
the traditionalists (‘ulama) (Al-Jarbou 2007: 219).
12 The descendants of Ibn Abd al-Wahhab (or Ash-Shaykh) have always – and through
to the present – occupied the main religious positions in Saudi Arabia.
13 This specific power lasted until 1964 only. A new Board of Grievances Regulation
was enacted in 1982, changing considerably the nature of the Board. Article 1 recog-
nises the Board as an independent administrative institution. Since the 1980s the
Board has gained more competences, such as criminal jurisdiction for specific cases
arising under, for instance, the Forgery Regulation, the Bribery Regulation, and the
Post Regulation. And, in 1987, jurisdiction to handle commercial cases was trans-
ferred from the commercial disputes committees to the Board (Al-Jarbou 2004: 33).
In 2007 a new Board of Grievances Regulation was issued (see 4.5).
14 For example, Abdallah ibn Hammud al-Tariqi became the Minister of Petroleum and
Mineral Resources in 1961; he was succeeded by another commoner, namely Shaykh
Ahmed Zaki Yamani (until 1986) (Niblock 2006: 44, 66).
15 The Ministry of Islamic Affairs, Endowment, Da‘wa, and Guidance, established by
King Fahd in 1993, played a major role in these activities.
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 177

16 The central figures in the government were, until recently, King Fahd (died in 2005)
and his six brothers, who all held high positions. These so-called Sudayri Seven, were
named after Abdulaziz al-Saud’s favourite wife, Hassa bint Ahmad al-Sudayri.
17 The Ordinance of the Provinces divided the kingdom into thirteen administrative
units.
18 See 4.5 on constitutional law.
19 Quoted in Human Rights Watch 1992: Intro.
20 In the last decade unemployment rates have gone down, with 11.6 per cent of the po-
pulation estimated to be unemployed in 2009 (Bartleby 2009).
21 See e.g. BBC News Online: http://news.bbc.co.uk/2/hi/middle_east/4477315.stm, last
accessed 14 January 2010.
22 See also MENA Election Guide: http://www.mena-electionguide.org/details.aspx/13/
Saudi%20Arabia/article421, last accessed 14 January 2010.
23 Prince Sultan, the Minister of Defence, has become the new Crown Prince.
24 Human Rights Watch: http://hrw.org/english/docs/2007/04/27/saudia15774.htm
(last visited 14 January 2010); National Society for Human Rights: http://nshr.org.sa/
english/aRightMenuCMS.aspx?mid=30 (last visited 3 February 2010).
25 See Saudi Arabia: In Focus (weekly publication of the Saudi Arabian embassy in
Washington, D.C.): http://www.saudiembassy.net/files/PDF/Publications/Focus/
2009/09-FOCUS-02-17.pdf, last accessed 14 January 2010.
26 For the English translation see the International Constitutional Law (ICL) Project:
http://www.servat.unibe.ch/icl/sa00000_.html, last accessed 9 February 2010.
27 In 2006, the Allegiance Committee was established by royal decree; the Committee
is composed of male descendants of the founder, King Abdulaziz, who will play a
role in choosing future Saudi kings. Future kings (the protocol will not come into ef-
fect until after the current Crown Prince Sultan has become king) will have to seek
the approval of the committee for their choice of successor (i.e. crown prince). See
the Website of the Royal Embassy of Saudi Arabia in London: http://www.mofa.gov.
sa/Detail.asp?InNewsItemID=55889, last accessed 14 January 2010.
28 A mufti is a member of the community of religious scholars (the ‘ulama), who is
competent to give his authoritative legal opinion (fatwa) on a particular issue.
29 In 2007, the government launched an official website for fatwas issued by authorised
scholars. Visitors can ask questions on various topics and receive a reply from the
Council of Senior ‘Ulama. See http://www.alifta.com.
30 He was succeeded by the current Grand Mufti, Abdulaziz al-Shaykh.
31 His writings, including fatwas, were – and still are – considered authoritative. Not
just in Saudi Arabia, but all over the world, Muslims accepted his opinions as mo-
rally valid and practical guidelines.
32 But see e.g. Al-Jarbou 2007: 209, who writes that ‘many laws and regulations are en-
acted every year without being studied by the Board of neither the Senior ‘ulamā’ nor
the Higher Council of Justice. The reason is that these laws can be implemented
without having the traditionalists approve of them or at least participate in their
enactment.’
33 English translation taken from the International Constitutional Law (ICL) Project:
http://www.servat.unibe.ch/icl/sa00000_.html, last accessed 9 February 2010.
34 Basic Ordinance, Art.s 49, 53. The Board is not allowed to hear any outcome of the
shari‘a courts, see Board of Grievances Regulation 2007, Art. 14.
35 However, appeals cases that involve amputation, execution, or stoning to death are
adjudicated by panels comprised of five judges (Judiciary Regulation (1975), Art. 13;
Regulation on Criminal Procedure (2001), Art. 10). There is a similar provision in
the 2007 regulation (Art. 15(1)).
178 ESTHER VAN EIJK

36 Some of its decisions were published by the secretariat of the Diwan for some years
in the late 1970s, but publication of its decisions was discontinued after that period
(Mallat 2007: 163-164 n. 70).
37 The Administrative Judicial Council’s jurisdiction is similar to that of the Supreme
Judicial Council. See Board of Grievances Regulation (2007), Art.s 4, 5. Articles 8
and 10 of the same regulation describe the mechanism of the Supreme
Administrative Court.
38 Besides their classical shari‘a college training, most Board of Grievances judges also
hold a law degree from one of the legal departments offered by various universities
in the country (Al-Jarbou 2007: 222).
39 A government delegation member in discussion with the CEDAW Committee in
January 2008 informed the Committee that the government ‘was in the process of
establishing a high-level scholarly panel, including the various schools of jurispru-
dence, to codify all the provisions of Islamic law relating to personal status’ (CEDAW
Committee 2008, Summary record of the 815th meeting).
40 It should be noted here that the father is the primary legal guardian of the child from
the moment the child is born. After divorce, the mother can become custodian of the
child (i.e. physical custody) until a certain age, after which full custody will be auto-
matically transferred to the father.
41 See BBC News Online: http://news.bbc.co.uk/1/hi/world/middle_east/4437667.stm,
dated 12 April 2005, last accessed 14 January 2010. See also Gulfnews.com: http://
www.gulfnews.com/News/Gulf/saudi_arabia/10228620.html, dated 14 July 2008,
last accessed 14 January 2010.
42 The Islamic Fiqh Academy, established in 1981, is affiliated to the Organisation of
the Islamic Conference (OIC) and is based in Jeddah.
43 See Arabi 2001: Chapter 7; Welchman 2007: 102-105.
44 It should be noted here that some ‘ulama have issued fatwas in which they contend
that misyar is zina (fornication) (ibid: 107).
45 Non-Muslim heirs are excluded as heirs in the estate.
46 Male relatives in the male line.
47 The new Judiciary Regulation (2007) and the Board of Grievances Regulation (2007)
provide that the commercial jurisdiction from the Board will be transferred to a spe-
cialised division within the regular shari‘a court system.
48 The most important regulation governing companies is the Saudi Companies
Regulation of 1965 (amended in 1967 and 1982). This regulation, for example, is lar-
gely taken from Egypt (Vogel 2000: 288).
49 Personal communication with F.E. Vogel, Leiden, March 2008.
50 It should be noted that citizens of the Gulf Cooperation Council who conduct com-
mercial business in the kingdom are also subject to zakat. See: http://www.dzit.gov.
sa/en/CommerceZakat/commercezakat1.shtml, last accessed 14 January 2010.
51 Personal communication with F.E. Vogel, Leiden, March 2008.
52 Ibid.
53 English translation taken from the International Constitutional Law (ICL) Project:
http://www.servat.unibe.ch/icl/sa00000_.html, last accessed 9 February 2010.
54 The other countries abstaining from voting included the Soviet Union, Poland,
Yugoslavia, and South Africa.
55 See Human Rights Watch memorandum: http://hrw.org/english/docs/2006/02/07/
saudia12622.htm, dated 7 February 2006, last accessed 14 January 2010.
56 For extensive and up-to-date information on state reports, reporting history, and re-
servations and objections regarding all UN treaties, see http://www.bayefsky.com
(The United Nations Human Rights Treaties).
SHARIA AND NATIONAL LAW IN SAUDI ARABIA 179

57 The woman and her male companion were initially both sentenced to ninety lashes.
Four of the five accused rapists were sentenced to between one and five years impri-
sonment and received between eighty and one thousand lashes for the offence of kid-
napping, as the Public Prosecution could not prove rape had occurred due to the
strict shari‘a rules of evidence that apply to this hadd crime. See The Independent
News Online: http://news.independent.co.uk/world/middle_east/article3204058.ece,
last accessed 14 January 2010.
58 See Al Jazeera English Online: http://english.aljazeera.net/NR/exeres/AF444D2D-
E666-437A-A441-37EA99C8BE4F.htm, last accessed 14 January 2010.
59 The study notes that ‘there appear to be no written legal provisions or official decrees
explicitly mandating male guardianship and sex segregation, yet both practices are
essentially universal inside Saudi Arabia’ (Human Rights Watch 2008: 4)
60 The 2005 Labour Ordinance states that women are permitted to work in ‘all fields
compatible with their nature’ (Art. 149). The Minister of Justice, however, prohibits
the issuing of licences to women to practise the legal profession (Yamani 2008: 152).
61 Saudi Arabia feared that Shi‘ite ascendance in the region would be strengthened by
the 2003 ousting of the old Sunni regime in Iraq and that Iraq would become a
Shi‘ite state. It appears that in line with these fears, a number of Saudi religious lea-
ders have encouraged young fighters to go to Iraq and fight against the Shi‘ites
(Schwartz 2005: 29-32).

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5 Shari‘a and national law in
the Sudan

Olaf Köndgen1

Abstract

This chapter maps the Sudanese experience around the applica-

tion of elements of the shari´a from early Islamisation in the six-
teenth century to early 2010. It shows how the Sudanese legal sys-
tem has been shaped by a variety of sources – from customary
law and shari´a law to Turko-Egyptian law, British colonial law, and
modern Egyptian civil law, to name some of the most important
sources. In a second part, the chapter offers an analysis of the
role of the shari´a in recent Sudanese legislation: in the constitu-
tion, in family and inheritance law, and in the fields of criminal
law and economic law. A section on human rights and interna-
tional obligations further demonstrates where Sudanese shari´a-
based legislation clashes with the human rights obligations of the
Sudan. Taken as a whole, shari´a application has been expanding
from 1983-1985 with a new stimulus as of 1989/1991 with the ad-
vent of the present military-Islamist regime. At this juncture, after
more than twenty years of military-Islamist rule, expansion of
shari´a application has clearly come to a standstill for the time
being. Given the threat of Southern Sudan breaking away in addi-
tion to the Darfur and other conflicts, shari´a application is not a
top priority for the Sudanese regime in 2010.
Table of contents
5.1 The period until 1920. The rising prominence of Islamic
law under Ottoman-Egyptian, Mahdi, and British rule 184
From the Funj-Sultanate to Ottoman-Egyptian rule 184
Shari´a of its own kind: Islamic legislation under the Mahdi 185
Serving the Condominium: Shari´a after the British-Egyptian
conquest 186
5.2 The period from 1920 until 1965. From colonial shari´a
to the quest for a constitution 187
Refining the system 187
The path to independence and beyond 187
5.3 The period from 1965 until 1985. From democratic
interlude to Numeiri’s Islamisation programme 188
Sudan´s second democratic experience 188
Numeiri´s early law reforms: an attempt to break free from
the colonial heritage 189
‘The Islamic path’ – Numeiri finds new allies 191
Shari´a as a last resort: Numeiri islamises the legal system 192
From the trial and execution of Muhammad Taha to the end
of Numeiri´s regime 195
5.4 The period from 1985 until the present. Whither shari´a? 196
Frozen shari´a under Siwar al-Dhahab 196
Indecision and procrastination under Sadiq al-Mahdi 196
A regime with an agenda: Bashir and Turabi take over 198
Judiciary and legislation as cornerstones of the NIF´s
Islamisation agenda 199
Peace at last? 201
5.5 Constitutional law 202
Islam not the state religion 202
Sources of legislation 202
Status of non-Muslims in the capital Khartoum 203
Eligibility of non-Muslims to become president of the Sudan 203
Omission of Islamic precepts 204
Religious freedom 204
(Un)Equal rights of women 204
The Constitutional Court 205
5.6 Family and inheritance law 205
Marriage 205
Divorce 207
Polygamy and special clauses 210
Inheritance 210
5.7 Criminal law 210
Hudud offences 210
 Blood money and retribution 213
No Islamic criminal law in the South 213
Public Order Act 213
5.8 Economic law 214
Islamic finance 214
Zakat 217
5.9 Human rights obligations 217
Legal contradictions between the shari´a and human rights
in national and international law 218
5.10 Conclusions 220
Diversity of legal systems that influenced the Sudan 220
Resistance in the North and in the South 221
Contradictions with human rights conventions 222
Perspectives for the future 222

Notes 224
Bibliography 227
184 OLAF KÖNDGEN

The Republic of the Sudan came into being on 1 January 1956, when it
gained its independence from Great Britain and Egypt. As of mid 2009, an
estimated 41 million people live in the Sudan, of whom 70 per cent are
Sunni Muslim. They live mainly in the North. An estimated 5-20 per cent of
the population is Christian and lives in the South and in and around the
capital Khartoum.2 Another 10-25 per cent of the population professes native
religions. Sudan has nineteen important ethnic groups and 597 subgroups.
More than a hundred languages and dialects are spoken in the Sudan.
Arabic and English are the official languages of the country, for about half of
the population Arabic is the mother tongue. The Southern part of the coun-
try chiefly consists of a black African population, composed of the Nilotic,
Nilo-Hamitic, and Sudanic groups. While the majority of the population is of
African descent (52%), many Sudanese are of Arabic descent (39%). Around
9% are Beja.

(Sources: Beck 2001; Bartleby 2010)

5.1 The period until 1920

The rising prominence of Islamic law under Ottoman-Egyptian,
Mahdi, and British rule

From the Funj-Sultanate to Ottoman-Egyptian rule

In 1800 the area, which is today the Sudan was largely dominated by
the Funj-Sultanate in North and Central Sudan with its capital Sinnar
(1504-1820) and the Sultanate of Dar Fur (1640-1916) in the West (Holt
1997: 943-945, 121-125). Early jurisdiction under the Funj – who had
adopted Islam under their first king `Amara Dunqas (1504-1534) – was
marked by only limited knowledge of the shari´a and the dominance of
customary law. By the time of the Ottoman-Egyptian conquest, Islamic
law and its institutions had made headway against the king’s absolute
judicial authority, not the least due to enhanced commercial activities
and the presence of a large number of foreign Muslim traders
(Spaulding 1977). In Dar Fur Islamic law equally coexisted with custom-
ary law, with the former gaining importance in the higher echelons of
Fur society. Penal law seems to have been entirely a domain of custom-
ary law, ‘[…] there is no evidence that the shari´a punishments were ever
imposed’ (O´Fahey & Abu Salim 1983: 9).
It was under Ottoman-Egyptian rule (1820-1881) that, for the first
time in their history, the North and the South of the Sudan gradually
became united. This process was largely completed with the 1874 con-
quest of the Sultanate of Dar Fur. In harmony with the new administra-
tive centralism a centralised judiciary was created for the first time with
SHARI‘A AND NATIONAL LAW IN THE SUDAN 185

a hierarchical system of local and provincial courts and an appeals court

in Khartoum (majlis ´umum al-Sudan). Any decision of the appeals court
had to be endorsed by the highest mufti and the Governor-General and
was sent for final approval to the highest judicial body in Egypt, the
majlis al-ahkam in Cairo. Which laws were actually applied by the
Egyptian administration remains to a certain degree unclear, as relevant
archives were later destroyed by the Mahdi’s army (see below).3 In some
instances shari´a was applied, in other cases Egyptian military and civil
codes appear to have been implemented. In more remote areas, justice
was administered according to customary law (Mustafa 1971: 37). As of
1850, a new penal code was introduced as part of the tanzimat reforms
(see 6.1) and implemented through a newly created system of secular
courts (Nizamiyye) (Fluehr-Lobban 1987: 30). As a consequence of this,
the competence of the shari´a courts was limited to personal status law
and matters concerning land rights. Egyptian dominance and the intro-
duction of a unified court system also meant the introduction of
Hanafite law.4

Shari´a of its own kind: Islamic legislation under the Mahdi

Ottoman-Egyptian rule came to an end when the Mahdi’s army con-
quered Khartoum in 1885. Muhammad Ahmad al-Mahdi, a religious re-
novator, had set out to liberate the Sudan from its ‘infidel’ oppressors
by means of a holy war (jihad). Consequently, after the conquest all ver-
dicts of the judges of the Turco-Egyptian rule were declared void. Using
the early community of Muslims as a model, he aspired to restore the
religious purity of the Prophet Muhammad’s time. The only sources of
the Mahdi’s legislation were thus the Qur´an and Sunna in his – often
idiosyncratic – interpretation. His large number of legal circulars was
frequently in conflict with the traditional Sunni schools of law. Thus,
for example, the payment of blood money (diya) was abolished, retalia-
tion (qisas) became compulsory, and more severe punishments were im-
posed on smoking than on drinking alcohol. Throughout the Mahdi’s
rule, recourse to the fiqh (Islamic jurisprudence) was largely excluded
and the position of the traditional religious scholars (ulama´) was weak-
ened (Köndgen 1992: 16-18).
Between 1896 and 1899 a joint Anglo-Egyptian army conquered the
Sudan and the Anglo-Egyptian condominium was established, which
made the Sudan effectively another British colony. The judicial struc-
tures of the Mahdi state had been centred largely around the Mahdi.
Their collapse, thus, meant that the British ‘had to start from scratch’
(Salman 1983: 66). The first Penal Code and the Criminal Procedure
Act were promulgated in 1899. The former was based on Anglo-Indian
colonial legislation, the latter on Egyptian military law, which, in turn,
186 OLAF KÖNDGEN

had its origins in British military law. Both had been adapted to
Sudanese conditions and the penal code had already been applied in
the East African protectorates and Zanzibar. The penal code was re-en-
acted in 1925.

Serving the Condominium: Shari´a after the British-Egyptian conquest

Lord Cromer, British consul general in Cairo, travelled to Khartoum im-
mediately after the conquest and promised British respect for the appli-
cation of Islamic law (Salman 1983: 66). Shortly thereafter, the colonial
administration was to – at least partially – fulfil his promises. The
Mohammedan Law Courts Ordinance of 1902 and the Mohammedan
Law Courts Procedure Act of 1915 provided the basis for the creation
and procedures of the ‘Mohammedan Law Courts’. These courts admin-
istered the shari´a in personal status cases and in litigation regarding
pious foundations (awqaf). The Mohammedan Law Courts Ordinance
provided for the Grand Qadis to issue legal circulars (manshurat) func-
tioning as provisions and regulating the interpretation of the shari´a.
Being published regularly, as they were, these circulars constituted a
precursor to codification, an innovation ‘the Egyptian ´ulama appear not
to have opposed’ (Jeppie 2003: 2).
Within the framework of the condominium, the Egyptians were gen-
erally kept at bay and only filled the lower ranks in the colonial adminis-
tration. An exception, however, were the shari´a courts, which were op-
erated almost exclusively by Egyptian judges. Until independence, the
Grand Qadi was always an Egyptian (Jeppie 2003: 2). Native or tribal
courts dispensing justice in the South and among Muslim nomads in
the North received recognition only twenty years after the conquest
(Jeppie 2003: 2). Under Reginald Wingate, the Sudan’s second
Governor-General, fear of a regenerated Mahdism led to a resolute sup-
pression of what was perceived as heterodoxy. As such, Sufi orders were
denied legality and surviving Mahdist leaders subdued. Concurrently,
the ulama, who had never been very important in the Sudan, were
granted pensions and status. In 1912, an institute to train ulama, emu-
lating al-Azhar in Cairo, was opened in Omdurman. In addition, mos-
ques were built and repaired and the pilgrimage to Mecca (hajj) was
promoted in order to pre-empt ‘fanaticism’ (Daly 1997: 746).
SHARI‘A AND NATIONAL LAW IN THE SUDAN 187

5.2 The period from 1920 until 1965

From colonial shari´a to the quest for a constitution

Refining the system

From 1920 native courts were given official recognition and effectively
used to gradually supplant the shari´a courts. In order to diminish the
status of the shari´a courts, native courts were now given jurisdiction
on personal status issues. By 1929, a good number of shari´a courts
had been suppressed and native courts set up instead. However, even
though reduced in number, shari´a courts continued to exist throughout
the era of the condominium (Jeppie 2003: 3).
Throughout the time of the condominium, the shari´a co-existed with
British common law and local customary law administered by tribal lea-
ders. As to penal law, provincial administrators and governors were al-
lowed great leeway. The same crime could be punished differently, de-
pending on whether the culprit was a nomad, a Southerner, or an Arab
(Köndgen 1992: 19).

The path to independence and beyond

The Sudan’s path to independence accelerated with a Self-Government
Statute passed in April 1952. In January 1954 it was decided that within
a period of three years the Sudanese had to reach a decision between
independence and union with Egypt. Immediately after, a Sudanisation
committee was established and British officials started leaving the
Sudan. In December 1955 the Sudanese parliament unanimously voted
for independence.
The Sudan’s first constitution a month after the country achieved in-
dependence, in January 1956, guaranteed parliamentary rule, the exis-
tence of a multi-party system, and free elections. It was intended to be a
transitional constitution, later to be replaced by a permanent one.
Instead, however, it survived three military takeovers and was revitalised
whenever the military had to step down (Warburg 2003: 144).
Three distinct tendencies dominated the discussion about the future
constitution and legislation between the years before independence and
on into the seventies. Firstly, proponents of an Islamic constitution and
legislation were represented above all by the Umma party, the
Democratic Unionist Party, the Muslim Brothers (originating from
Egypt), and some members of Sufi sects (Kok 1991: 240). Secondly, the
camp of the Nasserites, Ba´athists, and Arab nationalists advocated the
Egyptianisation of the Sudanese legal system, thus harmonising it with
the majority of socialist Arab states and dispensing with the British
188 OLAF KÖNDGEN

colonial heritage. Thirdly, a pragmatic camp endorsed the reform of the

existing legal system, but rejected its complete replacement by either
Islamic or Egyptian legislation. Most of the secular intelligentia and
graduates of the Law Faculty of the University of Khartoum belonged to
this camp (Köndgen 1992: 19-21; Kok 1991: 237-243).
As early as September 1956 a committee began to draft a ‘perma-
nent’ constitution. Sectarian leaders such as Sayyid Abd al-Rahman
al-Mahdi and Sayyid Ali al-Mirghani, joined by the Muslim
Brotherhood, advocated an Islamic parliamentary republic with the
shari´a as the main source of legislation. Khartoum was to be the ca-
pital of a centralised system of government with Arabic as the official
language and Islam as the religion unifying the nation (Kok 1989:
439). Non-Muslims were to be granted all rights envisaged by the
shari´a. Racial or religious discrimination was to be excluded. Within
a period of five years the Sudan was to be fully Islamised. Southern
objections against Islamisation and demands for a federal system
were dismissed. Thus, when in November 1958 the military took over
under General Ibrahim `Abbud, a national consensus on the perma-
nent constitution had not been reached and the draft constitution
had not yet been promulgated.

5.3 The period from 1965 until 1985

From democratic interlude to Numeiri’s Islamisation programme

Sudan´s second democratic experience

After the downfall of Abbud’s military dictatorship in 1964, the Sudan
lived through its second democratic stage. A slightly amended version
of the transitional constitution of 1956 was reenacted. However, solu-
tions for the constitutional impasse proposed by the different parties
concerned had not materially changed. Southern claims to self-determi-
nation and demands for a referendum on their future rapport with the
Muslim North continued to fall on deaf ears, even with moderate par-
ties in the North (Warburg 2003: 146). As of December 1967 a constitu-
tional committee debated anew a future ‘permanent constitution’ and
in early 1969 presented a draft defining the Sudan as a ‘democratic so-
cialist republic under the protection of Islam’ (Art. 1). This formulation
was meant to placate the left as well as the traditional Islamic right.
Falling short of full recognition of the Sudan’s religious plurality,
Article 3 stipulated Islam as the state religion. The shari´a was meant to
be the main source of legislation and all existing laws were to be re-
viewed in order to bring them into conformity with the shari´a (Kok
1989: 443-444). The draft also set forth that the presidency would be
SHARI‘A AND NATIONAL LAW IN THE SUDAN 189

reserved for Muslims only, thus – in constitutional terms – turning

Southerners into second-class citizens.5
At the beginning of 1969, the Sudan’s two largest Sufi orders, Ansar
and Khatmiyya, agreed upon a common platform; thus, the creation of
a presidential republic with an Islamist constitution was imminent.
However, Numeiri’s coup d’état in May 1969 averted the ratification of
this second constitutional draft. Backed by a coalition of Nasserites,
communists and Ba´athists, Numeiri immediately outlawed all political
parties and revoked the transitional constitution (An-Na´im 1985: 332)
in its 1964 version. In March 1970, the new regime bombarded the
Ansar in their stronghold on the Nile island of Aba during a head-on
confrontation. Their Imam al-Hadi al-Mahdi was killed when trying to
take refuge in Ethiopia so his nephew Sadiq al-Mahdi fled to Libya,
where he, together with Hasan al-Turabi and Sharif al-Hindi
(Democratic Unionist Party leaders), founded the anti-Numeiri-coalition
‘National Front’.
Numeiri’s honeymoon with the Sudan Communist Party (SCP) did
not last long. Disagreements between Numeiri and the SCP on the crea-
tion of a single-party system and the ensuing power struggle came to a
head when a communist coup attempt in July 1971 fell short of sweep-
ing the Numeiri regime away. However, with concerted Egyptian and
Libyan help, a counter-coup brought Numeiri back to the helm. The
general secretary of the SCP and hundreds of its members were exe-
cuted. In the course of the ensuing political reorientation, the United
States, Egypt, and Saudi-Arabia became the Sudan’s key allies.

Numeiri´s early law reforms: an attempt to break free from the colonial
heritage
Soon after Numeiri’s takeover, a good part of the legal system came un-
der scrutiny, resulting in the enactment of a succession of new laws. A
Law Reform Commission was appointed in 1970; it composed a Civil
Code written in Arabic. The code, hastily drafted, was mainly inspired
by the Egyptian Civil Code of 1949 and, thus, meant a radical shift
from common law to continental (French) European law (Amin 1985:
334). In the description of a Sudanese jurist,

[…] the commission proceeded to copy with impunity, and with

trivial and sometimes absolutely meaningless amendments, sec-
tion after section and chapter after chapter from the Egyptian
Civil Code of 1949, flavouring it here and there with a slightly
modified or differently phrased version from the Iraqi, Syrian,
or Libyan Civil Codes (Kok 1991: 238).
190 OLAF KÖNDGEN

In the same assembly-line fashion, a Civil Evidence Code (1971), Civil

Procedure Code (1972), and draft penal and commercial codes (1972)
were expeditiously produced. But Numeiri’s ‘legal revolution’ was not to
last. The new codes were revoked in 1974, and the common law was re-
stored once the regime’s preoccupation with Arab unity had subsided
and given way to other priorities (Kok 1991: 238).
Meanwhile, in February 1972, Numeiri’s government and the
Southern Sudan Liberation Movement (SSLM) had concluded a peace
treaty in Addis Ababa to end the rebellion that started in August 1955
and had continued as a large scale insurgency. The peace agreement,
which provided for an autonomous regional government in the South,
addressed, among other things, developmental, economic, and human
rights questions and was promulgated as the Southern Provinces Self-
Government Act in 1972.
In September of the same year, the People’s Assembly was convened
to hammer out a new constitution. After seven months of deliberations,
in May 1973, a ‘permanent’ constitution was promulgated. Several fac-
tors contributed to this success, seventeen years after reaching indepen-
dence. For one, the non-participation of the sectarian parties and the
Muslim Brothers allowed for an official recognition of the Christian
and all other Southern religions. Also, important contentious issues,
such as the status of the South and the nature of the executive, had
been solved beforehand and the ban on political parties had paved the
way for the Sudan Socialist Union (SSU) to operate as the sole remain-
ing party in a single-party system. Article 9 of the permanent constitu-
tion stipulated that Islamic law and customary law were main sources
of legislation. While non-Muslims and secularists in 1973 understood
the two to be on an equal footing, Article 9 would later be invoked (in
September 1983) to justify the introduction of the shari´a.
In 1974 the Sudan saw yet another wave of new legislation. With the
defeat of the pan-Arabist trend, the pragmatist school this time had its
way and neither the shari´a nor Egyptian law played a significant role in
the drafting process. A Sales of Goods Act, a Contracts Act, a new Civil
Procedure Act, an Agency Act, a Penal Code, and a Criminal Procedure
Act were promulgated (Köndgen 1992: 22). While the Civil Procedure
Act simply repealed the Civil Justice Ordinance of 1929, the Contracts
Act, the Sales Act and the Agency Act were for the most part codifica-
tions of the pertinent concepts of English law and the Sudanese prece-
dents. As to the 1974 Penal Code, it was an adaptation of the penal code
from 1925 and, likewise, free of shari´a elements.
SHARI‘A AND NATIONAL LAW IN THE SUDAN 191

‘The Islamic path’ – Numeiri finds new allies

Meanwhile Numeiri himself increasingly advocated ‘the Islamic path’.
During the seventies new Islamic institutions and events were founded
such as the ‘African Islamic Center’, an educational centre for African
Muslims (1972) and the ‘Festival of the Holy Qur´an’ (1973). After for-
cing his government and high-ranking civil servants to abstain from al-
cohol (1976), Numeiri gave the ‘Islamic path’ an important role in his
1977 electoral programme. The same year saw the establishment of a
committee for the revision of Sudanese legislation and the first bank
working according to Islamic principles.
In the meantime, domestic opposition to the Numeiri regime did not
diminish. After several failed attempts to overthrow Numeiri’s regime
between 1970 and 1975, the abovementioned National Front came very
close to toppling Numeiri in 1976. This failed coup attempt was fol-
lowed by a historical compromise with the leading opposition parties.
Its leaders, Sadiq al-Mahdi and Hasan al-Turabi, were co-opted into the
Sudanese Socialist Union (SSU). In turn, the National Front agreed to
cease its military resistance. However, the Front proved unable to over-
come internal divisions. In October 1978, Sadiq al-Mahdi withdrew
from the SSU in protest against Numeiri’s support of the Camp David
agreement.
The majority of Muslim Brothers nevertheless concluded that back-
ing the Numeiri regime was their best option.6 Al-Turabi and fellow
Muslim brethren began to fill government, SSU and other official posi-
tions. In August 1977 al-Turabi took over the chairmanship of a com-
mittee reviewing Sudanese laws for their compliance with the shari´a; a
month later he joined another committee reviewing the constitution
(Köndgen 1992: 35-36). The former worked out draft laws banning alco-
hol, the charging of interest, and on gambling as well as draft laws on
alms tax (zakat), hadd punishments, and a law on the sources of legisla-
tion. The zakat draft law was ratified by parliament, but repealed due to
difficulties with its application. Further, some specialised banks were es-
tablished to give interest-free loans. In 1979 the position of the Muslim
Brothers improved noticeably when al-Turabi was appointed Minister of
Justice. While the Muslim Brothers widened their influence within the
regime, the political and economic situation deteriorated further in the
late seventies and early eighties. The credibility of the Numeiri regime
was seriously undermined by drought, the influx of some two million
refugees from neighbouring countries,7 high inflation rates, cutbacks of
food subsidies, and inadequate supplies.
Regarding his Southern policy, Numeiri in 1979 began to gradually
dismantle the 1972 Addis Ababa agreement. He suggested to the
National Congress of the SSU that they restructure the South into
192 OLAF KÖNDGEN

three, instead of one, autonomous regions, each with its own regional
parliament and government. When in March 1981 the Southern
Regional Assembly rejected the motion, he dissolved the Southern
Regional Assembly and installed an interim government. Southerners
had economic grievances too. Government investment in the South pro-
mised under the Addis Ababa agreement had hardly materialised and
hopes for oil revenues had been foiled. Thus, in early 1983, the Sudan
People’s Liberation Army (SPLA) was founded and a civil war broke
out, which by June 1983, when Numeiri decided by presidential decree
to restructure the South, was already in full swing.

Shari´a as a last resort: Numeiri islamises the legal system

On the domestic front, the situation proved to be little better. A full-
scale confrontation between Numeiri and the judiciary had led to a
strike between June and September 1983 and a complete collapse of the
judicial system. In July 1983, while the confrontation between the re-
gime and the judiciary persisted, Numeiri appointed a three-member
committee to islamise the Sudanese legislation. The delicate question
of an Islamic constitution was excluded from the agenda. Al-Turabi,
whom Numeiri wanted to keep away from the process, had been ousted
as Minister of Justice shortly before the committee began its
deliberations.8
In September 1983, the first new Islamist laws were enacted as presi-
dential decrees. The Sudanese parliament ratified the ‘September laws’
without further discussion in November 1983. The most important of
these statutes were: the Civil Procedure Act (1983), the Civil
Transactions Act (1984), the Penal Code (1983), the Criminal Procedure
Act (1983), the Evidence Act (1983), the Judgements Acts (1983), the
Propagation of Virtue and the Prevention of Vice Act (1983), and the
Zakat Act (1984) (Layish & Warburg 2002). It is worth noting that
although parliament had the right to introduce a bill, none of the more
significant laws enacted before the downfall of Numeiri in 1985 were
initiated by parliament. Rather, they were initiated by the Sudanese pre-
sident himself who was the driving force of the Islamisation process.

Churned out in very much the same fashion as the Egyptianised legisla-
tion of the early seventies, certain provisions of the September laws
were in conflict with traditional Islamic jurisprudence (fiqh). For in-
stance, the Evidence Act required the testimony of four adult men to es-
tablish unlawful sexual intercourse (zina), but it was in contradiction to
the fiqh in allowing that ‘when it is necessary, the testimony of others
may be taken’. The 1983 Penal Code drew heavily on its 1974 predeces-
sor, summary punishments such as flogging, fines or prison no longer
SHARI‘A AND NATIONAL LAW IN THE SUDAN 193

corresponded to the gravity of the offence (Köndgen 1992: 42). As to

hadd punishments, the 1983 Penal Code eclectically took its inspiration
from different schools so as to aggravate possible punishments.
Simultaneously, the use of ‘legal doubts’ (shubha), used in the fiqh to re-
strict the execution of hadd punishments, was rather limited. In combi-
nation with the admission of witnesses not approved by the fiqh, the ap-
plication of hadd punishments was thereby considerably facilitated.9
Furthermore, by adding more severe punishments for political offences,
the new penal code provided a suitable instrument for the oppression
of political opposition.
The September laws were rejected by many Sudanese. In the South,
demonstrators protested against their second-class status within the
new shari´a system. Not surprisingly, the Sudan Council of Churches
also rejected the presidential decrees. In the North, a broad alliance of
secular parties, labour unions and liberal Muslims denounced the new
laws as un-Islamic, anti-women, generally repressive, and destructive to
the unity of the country. According to the Umma party, the September
laws represented a distortion of true Islam; Sadiq al-Mahdi suggested
that corporal punishment was inadmissible in a society that had not yet
attained a fair level of social and economic equality. One of the most
outspoken critics of the introduction of the shari´a was Mahmud
Muhammad Taha, spiritual leader of the reformist ‘Republican
Brothers’. For his opposition he would have to pay with his life in 1985
(see discussion below).10
After some discussion, al-Turabi and the Muslim Brothers decided to
back Numeiri, despite their exclusion from the process of codification.
In his earlier writings, al-Turabi had advocated a rather modernist ap-
proach towards the shari´a, arguing against a blind imitation of the tra-
ditional Muslim jurists (fuqaha´) and for an adaptation of Islamic law to
the needs of today. However, as the last remaining allies of a discredited
regime, the Muslim Brothers themselves had come under pressure.
The introduction of the shari´a retrospectively justified their close coop-
eration with the regime and ‘what mattered was that the Islamic laws
were in place and that a new atmosphere had been created which the
movement [had to] exploit to the full’ (Osman 1989: 267).
Theoretically, the shari´a was meant to be applied nationwide, but
this proved impossible. The scheduled establishment of a shari´a court
in the Southern city of Juba in 1984 had to be cancelled due to strong
local resistance. Southerners living in the North, however, were sub-
jected to floggings and amputations (MERIP 1985: 12). For the SPLA,
the September laws were yet another important reason, if not the only
one, to continue the war that had broken out in the spring of 1983.
In April 1984 the deteriorating economic situation led to a wave of
strikes, including by the judiciary. The judges voiced grievances directly
194 OLAF KÖNDGEN

connected with the September laws. In order to be able to continue

within the new system, some of the most prominent judges saw them-
selves forced to undergo further training, while others were summarily
discharged (Osman 1989: 294). To cope with the crisis, on 29 April
1984 Numeiri declared a state of emergency, which he would use in the
remaining year of his rule before his downfall to quell any resistance to
the shari´a. For this purpose, a competing body of emergency courts
was created. While the regular courts had to deal with proceedings that
had been pending for some time, the emergency courts had jurisdiction
over all recent and new court cases, thus over all cases to be judged in
accordance with the September laws. The judges manning the emer-
gency courts often had no legal training. Furthermore, Numeiri made
the presidents of the new courts accountable to him, thus disempower-
ing the Chief Justice and taking formal control of an important part of
the judiciary.
Already in June 1984 Numeiri had suggested a long list of constitu-
tional amendments to the People’s Assembly. The Islamisation of the
legal system under a secular constitution had led to a number of laws
becoming unconstitutional. However, with the Supreme Court filled
with supporters of the September laws, no judicial review of such laws
ever took place (Kok 1991: 242). Now Numeiri suggested the
Islamisation of the constitution to bring it into line with the shari´a-
based legislation and, above all, his political interests. Islamic terminol-
ogy was to replace the secular wording of the 1973 constitution. While
the president would have become a leader of the faithful (qa´id al-mu`-
minin) for life, the parliament was to mutate into a consultative council
(majlis al-shura), swearing an oath of allegiance (bai´a) to whoever the
leader of the faithful determined to be his successor. Thus, the presi-
dent would not be accountable to parliament, but the new consultative
council would owe their allegiance to him.
According to the draft reforms, Article 1 now declared the shari´a to
be the sole source of legislation, in contrast to its equal footing to cus-
tomary law as per the 1973 constitution. The South was to lose its
autonomy; all reference to the ‘Southern Provinces Regional Self-
Government Act’ of 1972 had been dropped. Not surprisingly,
Numeiri’s draft of constitutional amendments met with fierce resis-
tance from national as well as regional parliaments in the South. The
September laws had been approved by the parliament in order to avoid
its dissolution and, to be sure, due to some genuine sympathy for
Islamisation of the legal system. Accepting Numeiri’s constitutional
amendments, however, would have amounted to a near total (self)-dis-
empowerment of parliament. Once Numeiri had realised that despite
some suggestions for corrections parliament was not to be subdued, he
adjourned the discussion (Köndgen 1992: 54-55).
SHARI‘A AND NATIONAL LAW IN THE SUDAN 195

From the trial and execution of Muhammad Taha to the end of Numeiri´s
regime
Probably the most blatant abuse of the implementation of Numeiri’s
version of the shari´a was the trial and subsequent execution of
Mahmud Muhammad Taha, the leader of the ‘Republican Brothers’
mentioned above. While the Republican Brothers had backed Numeiri
during his secular beginnings, they opposed the September laws and
Numeiri’s divisive Islamisation policies. In May 1983 the confrontation
escalated and Taha and fifty of his followers were arrested. In 1984, the
Republican Brothers launched a campaign against the September laws,
criticising their unconstitutionality and multiple points of contradictions
with the fiqh. Moreover, several constitutional complaints were depos-
ited on grounds that the new laws discriminated against women and
non-Muslims. Numeiri would not tolerate any further criticism of his
shari´a: the 76-year old Taha was arrested again, sentenced to death,
and hanged for apostasy on 18 January 1985 (Rogalski 1990: 39-51).
While the indictment was initially construed as a state security of-
fence, subsequently Article 458(3) of the Penal Code was invoked.
Article 458(3) stipulated that even uncodified hadd offences could be
punished. During the appellate proceedings Taha was declared an apos-
tate, based on the 1968 decision of a shari´a court, which, at the time,
had not had jurisdiction in cases of apostasy. Apart from the highly
flawed underpinning of the judgment, the sentence contravened Article
247 of the Criminal Procedure Act exempting persons over 70 years of
age from the death penalty. In 1986, posthumously, the death sentence
for Taha was eventually declared to be null and void.11 The execution,
highly controversial in the Sudan and strongly criticised in the Western
press, was only one more step toward the downfall of the Numeiri
regime.
In September 1984 a power struggle broke out between Numeiri and
al-Turabi. In spring 1985 all Muslim Brothers were dismissed from
their government and SSU positions. Al-Turabi and 200 Muslim
Brothers were imprisoned, among them the president of the People’s
Assembly and one of the judges who had helped to sentence Mahmud
Taha. For the Muslim Brothers, this last-minute wave of arrests came as
a blessing in disguise. Instead of being drawn into the abyss, they could
now portray themselves as victims of the very regime they had helped
to stabilise for so long.
When at the end of March 1985 Numeiri abolished the subsidies for
bread and fuel, political parties, labour unions, and professional associa-
tions formed a broad coalition demanding his resignation. Numeiri,
who underestimated the imminent threat to his rule, flew to the U.S.
for talks with U.S. president Ronald Reagan. In his absence, bread riots
196 OLAF KÖNDGEN

broke out, which escalated to a general strike. On the 6th of April, while
Numeiri was already on his way back from the U.S., the Sudanese mili-
tary assumed power.

5.4 The period from 1985 until the present

Whither shari´a?

Frozen shari´a under Siwar al-Dhahab

The new Transitional Military Council (TMC) under Siwar al-Dhahab
(April 1985 – April 1986) abrogated the 1973 constitution, abolished
Numeiri’s singular political party, the Sudan Socialist Union (SSU), and
reinstated the ‘transitional’ constitution of 1956, thus guaranteeing reli-
gious freedom, political pluralism, and separation of powers once again.
The execution of hadd punishments was suspended as far as amputa-
tions were concerned, but floggings were still to be administered.
Those convicted under the September laws stayed in prison, joined by
others likewise sentenced to single or cross-amputation (see 5.7).12
The political forces rejecting the Numeiri-style shari´a legislation
proved too weak to have a decisive influence on its abolition during the
one-year reign of the TMC. Moreover, key ministers in the new cabinet,
such as the Prime Minister al-Djizuli Daf´allah, were either Muslim
Brothers or sympathetic to their cause. Hasan al-Turabi, who had been
released from prison immediately after the coup, did not lose time in
organising a demonstration demanding the retention of the shari´a.
Using the newly attained political freedoms – more than forty political
parties had been founded or resurrected after the TMC takeover – al-
Turabi established the National Islamic Front (NIF), an alliance of
Muslim Brothers, Sufis, tribal leaders, ulama, and former military offi-
cers. The NIF portrayed itself as hard-core defender of the shari´a in
their political programme, claiming that Islamic law also best protected
the culture and identity of non-Muslims. Resistance to Islamisation, ac-
cording to the NIF’s view, is either ‘a Western plot’ or emanates from
‘Southern Marxists’ such as the SPLA-leader John Garang. It is worth
mentioning that an important motive for the NIF’s enthusiasm for the
retention of the shari´a was economic. The banks controlled by the
Muslim Brothers had made considerable profits under its Islamic
provisions.

Indecision and procrastination under Sadiq al-Mahdi

When the military ceded power to a civilian government in 1986, none
of the Sudan’s urgent problems had been tackled. The economy
SHARI‘A AND NATIONAL LAW IN THE SUDAN 197

continued to be in a precarious situation. No peace treaty with the

SPLA had been negotiated. And, even though protest against Numeiri’s
abuse of Islamic law had been a driving force behind the 1985 demon-
strations, the shari´a was still in place.
Unsurprisingly, the first free elections in May 1986 resulted in a ma-
jority of the two largest sectarian parties, the Umma and the
Democratic Unionist Party (DUP), who together attained an absolute
majority.13 The NIF, with 28 out of 232 possible seats,14 proved success-
ful, but was excluded from participation in the new coalition govern-
ment at this time, because it was held partially responsible for the op-
pression of the Numeiri regime. Sadiq al-Mahdi, as the new prime min-
ister, immediately resumed the quest for an Islamic alternative to the
existing shari´a laws. The renewed discussion provoked fierce criticism
from the Bar Association and the Sudan Council of Churches.15 Despite
al-Mahdi’s repeated promises to revoke the September laws and replace
them by completely overhauled legislation, only a few minor corrections
were ever effectuated.16
In May 1988 the NIF joined the second coalition government of the
Umma and the DUP parties, making it a precondition that new Islamic
legislation would be enacted within two months. Under Hasan al-
Turabi, who became minister of justice and chief public prosecutor, the
Ministry of Justice finally submitted a draft penal code in September
1988. Hammered out by a group of jurists led most likely by the NIF,
the draft suppressed to a large degree the politically-motivated stipula-
tions of the 1983 Penal Code. The South was to be exempted from hadd
punishments. The location of the commission of the crime (e.g. North
or South), rather than the identity of the perpetrator (e.g. Southerner,
non-Muslim, Muslim, etc.), was to be decisive in determining penalties.
Highway robbery, thus, was to be punished with cross-amputation in
the North and a maximum prison sentence of ten years in the South.
On the other hand, non-Muslim Southerners living in Khartoum were
subject to the shari´a, while Muslims living in the South could enjoy al-
coholic drinks or even become apostates, at least according to a literal
interpretation of the letter of the law (Köndgen 1992: 70-71). In parlia-
ment, the draft met with resistance from the Southern deputies, who
demanded that Khartoum be exempted from any Islamic legislation.
The Umma and DUP, even though some of their members had been
part of the drafting committee, called for a revision of the draft.
In the meantime, negotiations with the SPLA conducted by
Muhammad Uthman al-Mirghani in Addis Ababa had gained momen-
tum, leading in November 1988 to a cease-fire. Al-Mirghani had, unlike
Sadiq al-Mahdi in earlier negotiations, agreed to suspend the shari´a
and to exclude any call for its implementation from the government’s
agenda (Warburg 1990: 635). Placated, the SPLA agreed to the
198 OLAF KÖNDGEN

convocation of a ‘national constitutional conference’ that was to deliber-

ate on a new constitution and a new penal code that would be consid-
ered acceptable to the non-Muslim Southern minority. Prime Minister
Sadiq al-Mahdi did not want to give the credit for having ended the civil
war to his political rivals. Siding with the NIF, he deliberately wrecked
the DUP/SPLA peace initiative. In protest against his tactics, the DUP
left the government coalition.
In the new government, formed in January 1989 with the Umma
party and the NIF as the sole remaining coalition partners, al-Turabi be-
came foreign minister, with another NIF member heading the crucial
Ministry of Justice. Before the government could decide on a new
Islamic penal code, an alliance of labour unions, professional associa-
tions, and army officers issued an ultimatum, demanding the ratifica-
tion of the DUP/SPLA peace agreement and the formation of a new
government of national unity. Only after Sadiq al-Mahdi had formed a
new cabinet, replacing the NIF with the DUP and representatives of the
labour unions and professional associations, the peace agreement with
the SPLA was ratified in April 1989. Now the tides had turned in favour
of a revocation of the shari´a laws. In mid-June, the al-Mahdi govern-
ment announced that the shari´a laws would be at last be nullified by
the 1st of July and that a government delegation was to meet SPLA re-
presentatives to discuss a permanent end to the civil war. However, one
day before the cancellation of the shari´a laws, the military intervened
once more and ended another – rather short – era of civilian rule.

A regime with an agenda: Bashir and Turabi take over

After the bloodless coup d’état, led by Brigadier Umar al-Bashir, the
Revolutionary Command Council for National Salvation (RCC) was
formed. In addition, the National Assembly was dissolved, all political
parties outlawed, the constitution revoked, and a state of emergency de-
clared. Even though al-Turabi, like other religious leaders and members
of the former government, was detained after the coup, it later became
clear that the coup was in fact staged with the active support of the
National Islamic Front.17 Once firmly entrenched, the Bashir/NIF re-
gime followed a systematic approach toward the transformation of all
relevant Sudanese institutions, turning them into NIF bastions.
Thousands of civil servants – 14,000 in 1989 alone – were sacked.
More than a hundred career diplomats were dismissed; others resigned
in protest and were replaced by NIF loyalists (Lesch 1998: 134).
A takeover of educational facilities and the underlying bureaucratic
infrastructure was effectuated. The Ministry of Education was purged,
teachers and faculty members replaced by NIF members, and the
elected faculty unions dissolved. Furthermore, the regime islamised the
SHARI‘A AND NATIONAL LAW IN THE SUDAN 199

curricula, and Arabic became the language of instruction in all public

universities. The Arabic language excluded many Southern students
who often had insufficient knowledge of Arabic to pass the compulsory
entry exams (Lesch 1998: 143-145). To enhance its influence, the NIF
founded several new universities and doubled numbers in the existing
ones. This was important because NIF understood that a higher percen-
tage of university graduates close to the NIF would ensure greater influ-
ence in professional associations in the future. By 1996, hundreds of
faculty members had been dismissed or left the country. In fact, the
brain drain had been so dramatic that a review by the Ministry of
Higher Education found a shortage of teaching staff as high as 80 per
cent in some universities (Lesch 1998:144).

Judiciary and legislation as cornerstones of the NIF´s Islamisation agenda

Not surprisingly, the judiciary was a prime target for the realisation of
the NIF’s Islamisation programme. According to estimates, ‘over sixty
percent of all judges have been replaced by appointees of the new re-
gime’ (Lauro & Samuelson 1996: 9). Between 300 and 400 judges
were dismissed or resigned between 1989 and 1991 alone (Amnesty
International 1995: 20). Their replacements often lacked proper train-
ing in shari´a beyond personal status matters or were not qualified at
all. While purging the traditional judiciary, the Bashir/NIF regime si-
multaneously built up a parallel system of courts that consisted of
Security of the Revolution Courts (later to be re-baptised ‘Emergency
Courts’) and Public Order Courts. One observer came to the conclusion
that ‘[t]he parallel judicial institutions created by the NIF now handle
more than 95% of the caseload of the Sudan, and are under the abso-
lute control of the executive branch’ (Abdelmoula 1996: 17). This esti-
mate obviously does not take into account the high number of cases
tried in customary courts.
While Southern law students, not trained in Arabic, were excluded in
practise from access to the legal professions, those who did enter were
often trained in newly founded law schools, concentrating on the shari´a
and neglecting the Sudanese common law traditions. Many Southern
judges were transferred to the North to hold minor positions or left the
judiciary to pre-empt dismissal. NIF adherents were appointed in their
place to guarantee the application of Islamic law wherever non-military
courts in the South were allowed to function (Lauro & Samuelson
1996: 37-38).
According to some observers, many of the female judges who held
positions in the civil and in the shari´a-governed personal status courts
were dismissed by the new regime or relegated to insignificant assign-
ments (Lauro & Samuelson 1996: 10). A 1996 report from the Lawyers
200 OLAF KÖNDGEN

Committee for Human Rights indicates that neither Southern nor fe-
male judges were appointed by the Bashir/NIF regime until the mid-
nineties.18 The regime also made sure that any opposition from the le-
gal profession was muted. Thus, the Sudanese Bar Association was first
dissolved after the coup and later ‘downgraded to a trade union subject
to the controls of the Registrar of Trade Unions and the Minister of
Labor’ (Lawyers Committee for Human Rights 1996: 37-38).
Concomitantly, the Bar Association lost some of its traditional immu-
nities, such as the inviolability of a lawyer’s files in his/her chambers.
Not surprisingly, the Bashir/NIF regime also promulgated important
legislation to further its strategic goal of an in-depth Islamisation of the
Sudanese society. As of early 1991, an overhauled, Islamised penal code
was implemented (Bleuchot 1994: 423-427; see also 5.7 below). The
new code contained the full range of hudud (sing. hadd) offences and
punishments and included, for the first time in the history of Sudanese
law, apostasy. In the same year, for the first time, a Muslim Personal
Law Act codified personal status law (Ali 2001: 29; An-Na´im 2002:
83). Other important legislative initiatives include the Public Order Act
of 1996 (now the Security of the Society Law), the 1998 Constitution,
and the Political Associations Act of 1998.
A cornerstone of the NIF’s claim to power was the establishment of
parallel military and security forces, meant to gradually replace the ex-
isting ones. Accordingly, al-Turabi openly stated that the Popular
Defense Forces (PDF) were meant to absorb the regular army and ‘mo-
bilise the public behind the jihad’ (Lesch 1998: 135), as the war against
the Southern forces was now baptised. To al-Turabi, at least according
to his public statements, the PDF was a means for the Muslim collec-
tive to fulfil its obligation to contribute to jihad, implicitly portraying the
non-Muslim soldiers of the South as an infidel enemy (Abdelmoula
1996: 20). Thus, while thousands of officers critical of the coup were
fired despite the ongoing war in the South, the Popular Defence Forces
were built up, from Arab tribal militias, NIF volunteers, drafted stu-
dents and civil servants, and forcibly recruited teenagers (Lesch 1998:
135). In the meantime, the regime had made sure that most pro-govern-
ment fighters were Southerners, either rounded up in Khartoum and
sent to fight for the Sudanese army in the South or belonging to
Southern pro-goverment militias (Martin 2002: 3).
In May 1999 al-Turabi negotiated a secret alliance with Sadiq al-
Mahdi in Geneva in order to prepare a regime change towards an NIF/
Ansar coalition, whilst simultaneously engaging in plans to get rid of
Bashir and the military. To this end, al-Turabi, as speaker of parliament,
contrived a motion suggesting the creation of the position of Prime
Minister, thus effectively reducing Bashir to a mere figurehead stripped
of any real power. When Bashir asked the parliament to postpone the
SHARI‘A AND NATIONAL LAW IN THE SUDAN 201

discussion of the motion, he was harshly rebuffed by al-Turabi. Being

in no doubt about the imminent threat to his regime, Bashir swiftly dis-
solved parliament and imposed a state of emergency, which also served
as a cover for the regime’s human rights violations. Al-Turabi, however,
did not easily accept defeat and in February 2001 hammered out a
memorandum of understanding between his new party, the Popular
National Congress (PNC), and John Garang’s SPLA. The bypassed
President Bashir forestalled the scheme, had al-Turabi arrested and held
him in detention for two-and-a-half years, until his release in October
2003.19 At the end of March 2004, Hasan al-Turabi was arrested anew
and remained in prison until June 2005.
Elimination of the architect of the Sudan’s Islamisation programme
of the nineties did not, however, lead to a political realignment. Bashir
soon made clear that adherence to the shari´a was still a pivotal element
of the regime’s ideology. At the time of writing, the Islamist statutes are
still in force and applied. The statement that the ‘Islamic experiment’
has come to an end seems therefore premature (Burr & Collins 2003:
253-280).

Peace at last?
In May 2004, a protocol on power sharing between the Bashir govern-
ment and the SPLA’s political wing, the SPLM, was signed in Naivasha,
Kenya. In this ‘Protocol between the Government of Sudan and the
Sudan People’s Liberation Movement (SPLM)’, the latter agreed to the
application of the shari´a in the capital Khartoum; other provisions of
the agreement gave guarantees as to the protection of non-Muslims. In
principle, the wording of these provisions was meant to safeguard the
rights of non-Muslims in the capital, while simultaneously allowing for
the continued application of the shari´a in Khartoum as the government
saw fit.
In July 2005, the Interim National Constitution of Sudan was adopted
after the National Congress Party, representing the central government
and the SPLM, had reached a peace agreement (Comprehensive Peace
Agreement – CPA) in January 2005. According to this agreement, the
Sudan is to be governed by an interim constitution during the six-year
transitional period. At the end of this period, in January 2011, a referen-
dum will take place in Southern Sudan to determine whether the South
will remain part of the Sudan or whether it will become an independent
state. In all likelihood a majority of voters will opt for the latter.
In early 2010 it has become clear that the spirit of reconciliation as
reflected in the protocol, the CPA, and in the interim constitution has
not been translated into a stable legal and political reality since the sign-
ing of the CPA in 2005. Without cooperation of the international
202 OLAF KÖNDGEN

community to support CPA implementation and post-2011 arrange-

ments as well as a lasting solution to the conflict in Darfur, the Sudan
is risking a return to war.

5.5 Constitutional law

The 2005 Interim National Constitution (INC)20 largely draws on its

1998 predecessor, but also contains provisions for power-sharing on a
70-30 basis with Southern Sudan; establishment of an upper house re-
presenting the states; and creation of a first and a second vice-president,
with one of the two from Southern Sudan. Article 218 makes it obligatory
for any person running in elections to respect the Comprehensive Peace
Agreement and to enforce its main clauses.21 The INC, not changing the
territorial principle applicable before, maintains that the shari´a is to be
effective in the North only, thus posing the problem of the status of
non-Muslims living in the North. Article 160 calls for an Interim
Constitution for ‘Southern Sudan’, which was promulgated in
September 2005.22

Islam not the state religion

Only a few of the INC’s articles make direct reference to Islam. Most
importantly, the Sudan is not defined as an Islamic republic, nor is
Islam the religion of the state (Böckenförde 2008: 85). Article 1 of the
1998 constitution set forth that ‘[t]he State of Sudan is an embracing
homeland, wherein races and cultures coalesce and religions conciliate.
Islam is the religion of the majority of the population. Christianity and
customary creeds have considerable followers.’ In comparison, in the
INC references to Islam with respect to the nature of the state have
been omitted. Instead, Article 1 (INC) states that the Sudan is a multi-
racial, multi-ethnic, multi-religious, and multi-lingual state. Thus, de
jure Islam is not the state religion.

Sources of legislation
Under the 1998 constitution, pivotal regulations, such as those concern-
ing the sources of legislation, contained ambiguous language. Article
65, for instance, read as follows:

Islamic law and the consensus of the nation, by referendum,

Constitution and custom shall be the sources of legislation; and
no legislation in contravention with these fundamentals shall be
made; however, the legislation shall be guided by the nation’s
SHARI‘A AND NATIONAL LAW IN THE SUDAN 203

public opinion, the learned opinion of scholars and thinkers,

and then by the decision of those in charge of public affairs.

While Islamic law was named first in this list of sources of legislation,
even for the South, it remained unclear what role the other sources
were to play in relation to shari´a. In contrast, in the 2005 INC version
of the constitution, it is clearly stated that the shari´a is not to play a
role in Southern Sudan: ‘Nationally enacted legislation having effect
only in respect of the Northern states of the Sudan shall have as its
sources of legislation Shari´a and the consensus of the people’ (Art. 5
(1)). While Southern Sudan is to have its own non-shari´a-based legisla-
tion (Art. 5 (2)), the shari´a-clause for the North would leave non-
Muslim Southerners in the North to be subject to Islamic law.23 This si-
tuation has been addressed in part by certain safeguards that protect
non-Muslims in Khartoum from being subjected to shari´a punish-
ments. No similar provision exists, however, for non-Muslims living
outside the capital.

Status of non-Muslims in the capital Khartoum

A fundamental difference with the 1998 constitution is a group of five
provisions (Art.s 154-158) protecting the rights of non-Muslims in the
capital Khartoum. Next to pledging respect for all religions in the capital
(Art. 154), Article 156 outlines the principles that are to guide the dis-
pensation of justice in Khartoum. Apart from the application of toler-
ance with respect to different cultures, religions, and traditions, Article
156 affirms that: ‘The judicial discretion of courts to impose penalties
on non-Muslims shall observe the long-established shari´a principle that
non-Muslims are not subject to prescribed penalties, and therefore re-
mitted penalties shall apply.’ Article 157, finally, calls for the establish-
ment of a special commission ‘to ensure that the rights of non-Muslims
are protected and respected […] and not adversely affected by the appli-
cation of Shari´a law in the National Capital’. It must be mentioned
here that Article 156 contradicts the position of non-Muslims in the
Criminal Act (1991) in many ways and that a faithful application of the
INC would require a substantial reform of the Sudan’s penal laws.

Eligibility of non-Muslims to become president of the Sudan

In 1998, Muslim dominance was further ensured by legislators who
made Arabic the official language of the Sudan (Art. 3) and also be-
stowed supremacy (hakimiyya) in the state upon Allah (God), the creator
of mankind (Art. 4). Governance (al-siyada) was bestowed upon the peo-
ple of the Sudan, who practise it as worship of Allah. Thus, governance
204 OLAF KÖNDGEN

was exercised by the faithful worshippers of Allah, acting as his trus-

tees. This wording essentially excluded secular Muslims and non-
Muslims. These articles, however, have been omitted in the INC.
According to the INC a non-Muslim could, theoretically, become presi-
dent of the whole of the Sudan (Art. 53).

Omission of Islamic precepts

Equally omitted from the INC are most other articles from the 1998
constitution relating to Islamic precepts and notions, such as alms tax
(zakat), state-based support for martyrs (shuhada), the purging of society
from Muslims drinking alcohol, and so forth. It goes without saying
that the 1991 Criminal Act and other existing laws (e.g. the Public
Order Laws) on the different levels (e.g. state, governorate) still give the
Northern Islamists enough leverage to pursue its policy of Islamisation
and enforcement of Islamic law, at least as long as no substantial legal
reforms are undertaken.
The INC expressly makes reference to and confirms the death penalty
for hadd and retribution-related offences (qisas). It also confirms applic-
ability of the death penalty for underage (below 18) and elderly (above
69) offenders in hadd or qisas cases (Art. 36).

Religious freedom
Concerning religious freedom, Articles 6 and 38 of the INC commit the
state to all precepts of religious freedom normally associated therewith.
Article 38 stipulates: ‘Every one shall have the right to […] declare his/
her religion or creed and manifest the same […]’. It should be noted
here that this right must be seen in the light of the pertinent sections
of the Criminal Act (1991), which make apostasy of Muslims punishable
by death (Art. 126). Non-Muslims are, thus, free to convert to Islam,
but not vice versa. In practise, however, death penalties have not been
imposed in cases against converts since the promulgation of the
Criminal Act in 1991.24 But, discrimination against Christians and ad-
herents of native religions was and is still commonplace,25 irrespective
of Article 31, which sets forth that ‘[a]ll persons are equal before the law
and are entitled without any discrimination as to race, colour, sex, reli-
gious creed […] to the equal protection of the law.’

(Un)Equal rights of women

The INC also guarantees men and women equal rights in the areas of
civil, political, social, cultural, and economic rights (Art. 32). These
guarantees, however, contradict to some degree other Sudanese
SHARI‘A AND NATIONAL LAW IN THE SUDAN 205

legislation. Equal rights for men and women are especially relevant with
regard to shari´a-based parts of the Criminal Act (1991) and in consid-
eration of family and inheritance laws, which are known to be disfa-
vourable to women in a variety of ways (see below). Article 15 of chapter
II on the ‘guiding principles and directives’ of the INC guarantees that:
‘No marriage shall be entered into without the free and full consent of
its parties.’ In the second section of the same article, the state is called
upon to ‘protect motherhood and women from injustice, promote gen-
der equality and the role of women in family, and empower them in
public life.’ Article 22 of the same chapter, however, clarifies that these
provisions ‘are not by themselves enforceable in a court of law’.

The Constitutional Court

In 1998 a Constitutional Court was established, with jurisdiction over
all issues related to the constitution. It can be appealed to by ‘any ag-
grieved persons for the protection of freedoms, sanctities and rights’
guaranteed in the constitution (Bantekas & Abu-Sabeib 2000: 543). The
INC maintains the Constitutional Court whose president, a deputy, and
five members are appointed by the president of the republic with the
approval of two-thirds of the Council of States.26 The president can,
thus, ensure a composition of the court favourable to his interests.

5.6 Family and inheritance law

The relevant Muslim Personal Law Act (MPLA) of 1991 is predomi-

nantly based on the Hanafite school. However, in order to introduce re-
forms, particular solutions from the other three Sunni schools, espe-
cially the Malikite school, have been introduced (Ruiz-Almodovar 2000:
180; Ali 2001: 30). It is applicable, if both parties or only the husband
are Muslim. Christians and Jews may use their respective laws with re-
gard to personal status, marriage and divorce, if both partners belong to
the same religious community. Members of Southern Sudanese tribes
are subject to customary law. Customary laws with regard to marriage
have been codified only for the Dinkas, Luos and Fertit in the Re-state-
ment of the Bahr El Ghazal Customary Law Act (1984).27 Customary
law, however, remains to a large extent uncodified and unpublished. If
both partners belong to the (small) community of Hindus, Hindu law is
applicable (Ali 2001: 30).
206 OLAF KÖNDGEN

Marriage
Mixed marriages and customary marriages
Even though a Muslim man can marry a non-Muslim woman as long
as she belongs to ‘a heavenly religion’ (i.e. Christianity or Judaism), a
Muslim woman cannot marry a non-Muslim man, unless the non-
Muslim man converts to Islam (Art. 19 MPLA). In Southern areas not
controlled by the government, this regulation is not enforced. In the
case of mixed marriages between a Sudanese and a foreign citizen, the
effects of such a marriage, such as property rights and child custody,
are adjudicated in accordance with the laws of the husband’s country.
Unregistered, customary (´urfi) marriages are considered valid, but
do not result in the same legal rights for women. Under an ´urfi mar-
riage, for example, a woman is not entitled to alimony.

Dower
The marriage contract obliges the husband to pay a sum of money as a
dower (mahr) to the wife (Art.s 27-31 MPLA). The dower can also take
the form of services or other assets. The full dower gift, which becomes
the property of the wife (Art.s 28-29), is due with the conclusion of a
valid marriage contract confirmed by the consummation of the mar-
riage. The two spouses can either agree on the dower before the mar-
riage or, if no agreement has taken place, the ‘fair mahr’ (mahr al-mithl),
based on the social status of the bride, is due at the time of marriage in
accordance with Article 29(5) (Ali 2001: 75).

Maintenance during marriage

The wife is entitled to receive maintenance from her husband from the
time of conclusion of a valid marriage contract (Art. 69 MPLA).
Maintenance includes food, clothing, dwelling, medical treatment, and
everything else required in order to live according to custom (´urf, Art.
65). In determining the maintenance due, the economic situation of the
husband must be taken into consideration. If these circumstances
change, the maintenance due changes with it (Art.s 66-67).
Maintenance of the wife is due irrespective of whether the wife is well-
to-do or has an income of her own. The MPLA (1991) does not recog-
nise any obligation of the wife to contribute to the family income (Ali
2001: 83). In case the husband does not pay maintenance, or only pays
part of it, the wife can claim up to three years of arrears, unless the
spouses have come to a different agreement (Art. 70(1)).
The wife loses her right to maintenance, if she refuses to move to
the common home without legally valid grounds, if she leaves the com-
mon home without legally valid grounds, if she prohibits the husband
to enter the common home without legally valid grounds, if she works
SHARI‘A AND NATIONAL LAW IN THE SUDAN 207

outside the home without the consent of the husband, or if she refuses
to travel with her husband without legally valid grounds (Art. 75(a-e)).

Rights of wife and husband

Next to maintenance, the wife has the right to visit and to receive visits
from her parents and close family (maharim) Wives, however, cannot
travel abroad without the consent of their husband or male guardian.
(Art. 51(a-b)). She is further entitled to protection with regard to her per-
sonal property (‘adam ta’arrud amwalha al-khassa) and protection from
material or mental harm. She also has the right to fair treatment vis-à-
vis other wives, if the husband has more than one wife (Art. 51(a-d)).
The husband, in turn, has the right to be attended to and the right to
obedience from his wife. She also has the duty to guard and defend
him, his honour, and his property (Art. 52(a-b)).

Consent to marriage and guardianship

Both parties willing to marry must be past the age of puberty and must
consent to marriage out of their own free will. The law does not stipu-
late a minimum age at which puberty can be considered to have been
reached. Both the man and the woman have the right to call off the
marriage (Art. 9(a)).
The male guardian (wali) marries adult women with their consent
(Art. 34). If he refuses to consent to the marriage without justification,
however, a judge can replace him and provide legal consent to the mar-
riage in his stead. If the guardian refuses to consent to the marriage of
his ward she can demand to be married by a judge (Art. 37(1)). The
judge can authorise the marriage of whoever demands it, if it is proven
that the guardian refuses to give his consent without legal justification
(Art. 37(2)).
In meeting legal requirements for the witnessing of a marriage con-
tract either the testimony of two men is permissible, or of one man and
two women (Art. 26).

Divorce
A divorce can be realised in the following ways (Art. 127 MPLA): a) on
the (formal) initiative of the husband (talaq); b) by initiative of both
spouses (the so-called khul´), or repudiation against compensation (talaq
´ala mal); c) divorce on the initiative of the wife by court decision (tatliq
or faskh); and d) death of one of the spouses.

Divorce initiated by the husband (talaq)

A marriage can be dissolved at any time by the unilateral repudiation
by the husband or his representative (talaq) (Art.s 128-141); marriage
208 OLAF KÖNDGEN

dissolution initiated by the wife using the talaq procedure is also valid,
if the husband has invested his wife with such authority (Art. 132). The
husband does not need to give reasons for the repudiation, and it is not
necessary that a court intervenes (Ali 2001: 100). There are two kinds
of repudiations, revocable and irrevocable.
Revocable repudiation terminates the marriage contract only at the
end of the waiting period (´idda,28 see Art. 136(a)). The husband has the
right to return to his wife during the ´idda period, even against her will
(Art.s 139-141). However, for the revocation of the repudiation to be va-
lid, the repudiated wife must be informed of the repudiation within the
´idda period (Art. 141). Irrevocable repudation terminates the marriage
in two ways: 1) after a simple irrevocable repudiation (talaq ba´in bainu-
na sughra) the marriage can only be restored by concluding a new mar-
riage contract and again paying the dower; and 2) after an absolutely ir-
revocable repudation (talaq ba´in bainuna kubra) the former marriage
can only be restored by way of a new marriage (as in 1), if the divorced
wife is first married to another man and this marriage is consummated
and subsequently dissolved (Art. 136(b)).

Divorce initiated by both spouses (khul´)

An alternative method of divorce is called khul´ (Art.s 142-150). In this
case both parties agree to dissolve a marriage without court intervention
by means of a financial compensation to be paid to the husband by the
wife. The financial settlement consists of the wife either returning the
dower or giving up her rights to financial compensation, such as re-
nouncing the payment of the parts of the dower not yet payed in ex-
change for a divorce. The financial settlement cannot be replaced by
compensation of a non-monetary form, such as by the wife giving up
custody rights to their common children (Ali 2001: 105). Khul´ divorce
is irrevocable.

Divorce initiated by the wife in court (tatliq)

In the framework of the tatliq (divorce) procedure, which recognises var-
ious valid grounds for divorce, the court intervenes. Grounds for di-
vorce that may be invoked by the wife include, for example, situations
such as the husband suffering from an incurable physical defect (Art.s
151-152) or impotence (Art.s 153-161); cruelty of the husband or discord
between the spouses (Art.s 162-169); divorce by redemption (Art.s 170-
173); failure of the husband to pay maintenance to the wife (Art.s 174-
184); absence or imprisonment of the husband (Art.s 185-191); and refu-
sal of the husband to have sexual intercourse with his wife (Art.s 192-
195).
SHARI‘A AND NATIONAL LAW IN THE SUDAN 209

Maintenance and financial compensation after a divorce

Following divorce, the wife is entitled to maintenance during the ´idda
period (mentioned above), unless the divorce is the consequence of an
illegal act on the part of the wife (Art. 72). A woman in the state of ´idda
who is not breastfeeding has the right to receive maintenance after the
divorce for a maximum of up to one year (Art. 73(a)). A woman in the
state of ´idda who is breastfeeding receives maintenance for up to three
months after the end of lactation. If she swears that her menstruation
fails to appear due to breastfeeding, the period of maintenance will be
prolonged to two years and three months after the birth of the child
(Art. 73(b)).
In addition to the alimony described above, the divorced woman is
entitled to a financial compensation (mut´a) equivalent to the mainte-
nance of the ´idda, not exceeding six months and according to the sol-
vency of the ex-husband (Art. 138, Ali 2001: 110). However, in the fol-
lowing cases, the mut´a is not due: a) if the reason for the divorce is the
non-payment of maintenance due to the lacking solvency of the hus-
band; b) if the divorce has been caused by a fault (´aib) of the wife; and
c) if the divorce has been reached by mutual consent against a payment
by the wife (Art.s 138 and 2(a-c)).

Custody
After divorce the mother is entitled to custody of boys until they are se-
ven years old and of girls until they are nine years old (Art. 115(1)
MPLA). A judge can authorise the custody of divorced mothers for boys
between seven years of age until they reach puberty and for girls be-
tween nine until the consummation of marriage if it is in the interest of
the ward (Art. 115(2)). If the woman who has custody has a different reli-
gion than the Muslim father of the ward, she loses custody when the
child reaches the age of five or at any time it is feared that she is raising
the child in a different religion than that of the father (Art. 114(2)). The
father or another male guardian is to supervise all affairs of the ward in
the custody of the mother, such as education, guidance, and instruction
(Art. 118). The custodial parent may not travel within the country except
with the permission of the guardian of the child (Art. 119). On the other
hand, the guardian (i.e. the father or another person) also cannot travel
with the ward without the permission of the woman who has custody
(Art. 120). Financial support of the child is the father’s responsibility for
girls until the daughter is married and for boys until the son is old en-
ough to earn his own living (An-Na´im 2002: 85).
210 OLAF KÖNDGEN

Polygamy and special clauses

Sudanese personal status law allows for polygamy (Art. 19(b) MPLA).
However, the wife has the right to insert a clause in the marriage con-
tract prohibiting the husband from taking additional wives. When there
is a violation of this clause, the first wife can obtain a divorce without
having to prove damage (darar). In general, any clause in the marriage
contract is permitted, unless it ‘allows for something prohibited or pro-
hibits something permitted’ (Art.s 42(1-3)). The husband cannot live
with his second wife in the same house where he lives with his first
wife, unless the first wife has agreed to such an arrangement. In the lat-
ter case, the first wife maintains the right to terminate cohabitation at
any moment (Art. 79).

Inheritance
The inheritance laws discriminate against women. Male heirs receive
twice the share given to females possessing the same degree of relation
to the deceased. Daughters inherit half the share of sons in cases of the
death of a parent. A widow inherits a smaller percentage than do her
children. Heirs must also be adherents of the same religion. Thus, a
non-Muslim widow cannot inherit from her Muslim husband except as
a legatee in his will, which amounts to a maximum of one-third of his
assets. Of the other two-thirds, distributed according to shari´a princi-
ples, she receives nothing (Art.s 344-400 MPLA).

5.7 Criminal law

The Sudan Criminal Act (CA) was promulgated in 1991. Its text is iden-
tical to that of a 1988 draft criminal code with the exception of a hand-
ful of amendments.29 Related laws are the Criminal Procedure Act of
1991, and the Evidence Act of 1993.

Hudud offences
The Criminal Act of 1991 (CA), which is based on the pertinent qur´
anic prescriptions, defines six offences as ‘hudud offences’: drinking al-
cohol, unlawful sexual intercourse, unproven accusation of unlawful
sexual intercourse, banditry, theft, and apostasy.30
Only Muslims are to be punished with forty lashes for the drinking
of wine (shurb al-khamr), and, in extrapolation, for the consumption of
any other intoxicating drink (Art.s 3 and 78(1) CA). Exceeding traditional
Islamic jurisprudence, Sudanese criminal law also stipulates the same
SHARI‘A AND NATIONAL LAW IN THE SUDAN 211

hadd punishment for individuals found guilty of the offence of produc-

tion and/or possession of intoxicating beverages. Non-Muslims, though
not subject to the above provisions, face the same punishment – whip-
ping of up to forty lashes – for alcohol consumption in conjunction
with causing public nuisance (Art. 78(2)). Recidivists who commit one
of the above crimes or anyone found guilty of dealing in alcohol and in-
dicted for the third time is liable to a prison term of up to three years
or a whipping of up to eighty lashes; in other words, twice the amount
of lashes stipulated for the hadd crime may be inflicted on the non-
Muslim recidivist alcohol ‘dealer’31 (Art. 81). Non-Muslim women have
been particular targets for indictments made in relation to alcohol-re-
lated offences.
Unlawful sexual intercourse (zina) is punishable by stoning for the
muhsan and by one hundred lashes for the non-muhsan, with muhsan
being defined as the legal status of an individual who, at the time of the
commission of adultery, is in a valid and ongoing marriage that has
been consummated (Art.s 145 and 146). Widowers, widows, and divor-
cees do not therefore fall under the definiton of muhsan, different from
traditional Islamic jurisprudence (Scholz 2000: 445).
Female victims of rape have, in some instances, suffered grave injus-
tices from Sudanese courts when the rape resulted in pregnancy. Since
pregnancy out of wedlock is recognised as proof of unlawful sexual in-
tercourse, in some cases pregnancy was taken for implicit proof of zina.
In other words, rape can be proven either, rather unlikely, by four male
witnesses to the crime or by a confession of the rapist, equally unlikely
(Sidahmed 2001: 197-200). If neither the witnesses nor the confession
could be produced, a conviction for unlawful sexual intercourse, proven
by the fact of pregnancy, was permissible in court.32 In other more re-
cent cases, however, alleged rape has been recognised as legal doubt,
the effect of which is to avert the hadd punishment.33 In all of the cases
referenced here, the (alleged) rapist was released for lack of evidence.
Offenders committing zina in the Southern states are not subject to
the hadd punishments, but do face a prison term of up to one year for
the non-muhsan and up to three years for the muhsan, in combination
with a possible fine.34 Non-Muslims in the North, however, are not ex-
empted from the hadd punishments and are not treated differently from
Muslims, according to the Criminal Act (1991).35 Hetero- or homosexual
anal intercourse (liwat) is not subsumed under the article on unlawful
sexual intercourse (zina). In fact, it is not part of the hudud and conse-
quently the prescribed punishment is equally applicable in the
Southern states as it is to offenders in the North. Nevertheless, punish-
ment is severe. First and second time offenders are sentenced to one
hundred lashes and a prison term of up to five years; the third-time re-
cidivist faces execution or life imprisonment (Art. 148).
212 OLAF KÖNDGEN

Unproven accusation of unlawful sexual intercourse (qadhf) is pun-

ishable by eighty lashes under the condition that the victim of qadhf has
not been previously convicted for unlawful sexual intercourse (zina),
anal intercourse (liwat), rape, incest, or practising prostitution (Art. 157).
While liwat has been defined separately from the hadd offence of un-
lawful sexual intercourse, it is now, inconsistently, subsumed under
qadhf (Scholz 2000: 447). Among other reasons, the punishment for
unproven accusation of unlawful sexual intercourse can be remitted if
the offender is an ascendant of the victim or when the defamed person
pardons the defamer before the execution of the punishment.
The hadd offence of banditry (hiraba) is a ‘composite crime’ and
thereby punished according to the gravity of the crime(s) committed.
As the smallest common denominator, the crime of hiraba is com-
mitted by whoever ‘intimidates the public or hinders the users of a
highway with the intention of committing an offence against the body,
or honour, or property’ (Art. 167). Thus, if murder or rape are com-
mitted in the context of hiraba, the punishment will be severe: execu-
tion or execution with subsequent crucifixion. If grievous hurt was com-
mitted or the property stolen reaches the minimum value required in
cases of hadd theft, the punishment is cross-amputation, that is the am-
putation of the right hand and the left foot. All other cases of hiraba are
punishable by a prison term of up to seven years in exile (taghrib). If
the offender voluntarily abandons the commission of hiraba and de-
clares his repentance before his arrest, the hadd penalty will be re-
mitted. However, a prison term of up to five years may imposed and
the rights of the victim with regard to diya (blood money) and/or com-
pensation must be respected (Art. 169).
Hadd theft (sariqa haddiyya) is punishable by amputation of the right
hand (and with a prison term of up to seven years for second time reci-
divists) (Art.s 171 (1) and 171(2)). In comparison to non-hadd theft, theft
punishable by the hadd penalty must fulfil certain conditions. If one of
these conditions is not met, the hadd penalty will not be due. Among
these conditions are that the stolen property must reach a certain value
(nisab); it must be taken from a safe place where moveable property is
kept (hirz); and the property must be moveable, belong to another per-
son, and must be taken covertly with the intention of appropriation
(Scholz 2000: 449-451). A number of reasons can lead to the remit-
tance of the punishment of amputation for theft (e.g. when the offender
has or believes to have a share in the stolen property or when the theft
takes place between ascendants and descendants or between spouses).
The punishment is also remitted if the offender either restores the sto-
len property before being brought to trial or becomes the owner of it, or
if he retracts his confession and the theft was proven by conviction
only.
SHARI‘A AND NATIONAL LAW IN THE SUDAN 213

Apostasy (ridda), punishable by death, was codified for the first time
in Sudanese history in 1991 (Art. 126 CA). Every Muslim who re-
nounces the creed of Islam either by an express statement or by a con-
clusive act commits the crime of apostasy (Art. 126 (1)). The law, how-
ever, does not specify further which form such a statement or act must
take to fall under this definition. Thus, this wording leaves a lot of
room for interpretation and, therefore, abuse. However, apart from the
notorious Muhammad Taha case (1985), no other execution for apostasy
has been reported. Irrespective of the sex, the apostate is given a chance
to repent during a period to be determined by the court. If the apostate
recants before execution, the punishment will be remitted (Art.s 126(2)
and 126(3)). Recent converts are exempted from the death penalty for
apostasy (Art. 126 (2)).

Blood money and retribution

Other pertinent concepts of Islamic criminal law, such as blood money
(diya) and retribution, have also been codified. Blood money has been
enacted as possible compensation for crimes such as intentional homi-
cide, semi-intentional homicide, and homicide by negligence (Art.s 130-
132 MPLA); abortion (Art. 135); and the infliction of intentional and
semi-intential wounds and wounds by mistake (Art.s 139-141).
Retribution (qisas, or literally ‘an eye for an eye’) is the penalty stipu-
lated for causing intentional wounds. Article 29, however, sets forth
precise conditions for retribution, namely that the two organs must be
similar in type, soundness, and size. There will be no retribution except
for a counterpart of the injured organ, and a sound organ cannot be ta-
ken for a defective one. Likewise, a whole organ can only be taken as re-
tribution for the loss of a whole organ, and part of an organ only for
the loss of a part.36

No Islamic criminal law in the South

The provisions of the Criminal Act (1991) on hudud offences – drinking
alcohol and causing nuisance, dealing in alcohol, sale of carcasses, apos-
tasy (ridda), for causing intentional wounds (qisas), unlawful sexual in-
tercourse (zina), false accusation of unlawful sexual intercourse (qadhf),
armed robbery (hiraba), and theft (sariqa) – are not applicable in the
Southern states of the Sudan.37

Public Order Act

A more tangible enforcement of the regime’s view of Islamic values
than the Criminal Act of 1991 was, and still is, for many citizens the
214 OLAF KÖNDGEN

public order acts of individual governorates. The governorate of

Khartoum’s ‘Khartoum Public Order Act’ of 1996, which was ‘intro-
duced to storm against society’s ‘immorality’ […], to organise market
places and to control public appearances’ is particularly illustrative.38 In
addition to the relevant articles of the Criminal Act of 1991 on alcohol
consumption, prostitution, obscene acts, and public morality, all of
which were enforced from the time of their promulgation, Bashir is-
sued complementary directives in November 1991 imposing Islamic
dress in all government offices, schools, and universities (Sudanow
1992: 26-27). The Khartoum Public Order Act of 1996 went even
further in controlling public space, adding new offences such as ‘dan-
cing between men and women’, ‘private parties’ without permission, or
‘singing of trivial songs’ during a party. It further mandated gender se-
paration in public transportation39 and banned men from working in
the hairdressing business. Contraventions against the Public Order Act
and relevant articles under the Criminal Act (especially alcohol offences)
are tried by Public Order Courts. Their rulings are carried out on the
spot. To allow the accused to prepare a defence is not a requirement in
Public Order Courts, neither is the right to legal assistance provided for
(SIHA 2009: 14). In 2002, the Public Order Act was repealed and sup-
planted by a ‘Security of the Society Law’. In 2009, this Security of the
Society Law continued to be applied in Khartoum State.40

5.8 Economic law

Islamic finance
Islamic finance, closely linked to the establishment of Islamic banks,
did not make its appearance in the Sudan before the late seventies. The
first bank to apply Islamic principles was the Faisal Islamic Bank of
Sudan (FIBS), which was established by a special act of parliament in
1977 granting it extensive tax concessions and freedom to transfer for-
eign currency. It began operating in 1978 and proved to be a consider-
able success. A net profit of 1 million Sudanese Pounds in 1979 rose to
21 million Sudanese Pounds in 1982, enabling the bank to pay to their
shareholders 25 per cent return on their investment. Next to practising
interest-free banking, the FIBS statutes stipulated that 10 per cent of
net profits were to be distributed to the poor as zakat (Stiansen 2004a:
156-159).
The unprecedented success of the FIBS led to the establishment of
other Islamic banks, some of which had close links with the main poli-
tical groups.41 Only the Umma Party did not run its own bank. The
Muslim Brotherhood, who already had close links to the Tadamon
Islamic Bank, managed in the early eighties to take over all important
SHARI‘A AND NATIONAL LAW IN THE SUDAN 215

management positions of the FIBS. Audits of the Bank of Sudan dis-

closed that loans in many Islamic banks were given preferentially to
members of the respective political group to which the bank had links.
This had led to a very high default rate on such loans (Stiansen 2004a:
159).

In 1983 and 1984, the Civil Procedure Act, the Civil Transaction Act,
and circulars from the Bank of Sudan gradually abolished interest-based
bank lending and as of December 1984, Islamic forms of contracts such
as musharaka, murabaha, and mudaraba42 were introduced. Interest-
bearing accounts were changed to comply with the new rules.
Enforcement of the ban on interest, however, was lax, and in 1986 the
new democratic government under Sadiq al-Mahdi re-introduced a
choice between banking based on interest and non-interest banking by
allowing compensatory rates on loans and the payment of compensatory
rates on deposits (Stiansen 2002: 43, 53). The government led by Sadiq
al-Mahdi did not, however, change the existing legislation on interest.
After the 1989 Islamist coup these compensatory rates were abol-
ished and the streamlining of Islamic financial contracts gained mo-
mentum. Special attention was given to murabaha contracts, which un-
til at least the late nineties were the dominant financial contract, used
in as much as possibly 80 per cent of all financial transactions
(Stiansen 2004b: 83). Murabaha contracts in theory consist of a sale
agreement in which the bank buys a commodity on behalf of a custo-
mer. The latter pays when the good is delivered or after delivery on the
basis of an agreed schedule. The profit margin charged by the bank is
not considered to be interest because it cannot be changed, i.e. in-
creased, even if the customer fails to pay after having received the com-
modity. The bank necessarily has to take physical possession of the
commodity before it is handed out to the customer. Until the mid-nine-
ties, however, murabaha contracts were little more than camouflaged in-
terest-based transactions that minimised the risks for the banks. Thus,
banks asked for down-payments, letters of guarantee, liens on real es-
tate, or mortgage loans equivalent to the amount of the murabaha con-
tract. The banks normally did not see the commodities bought for cli-
ents (Stiansen 2004b: 83). In 1993, a fatwa issued by the Bank of
Sudan’s Shari´a Council established criteria for murabaha contracts that
would ensure their legality and also bring them closer to the spirit of
the shari´a. But it took until 1995 before a tighter supervision by the
Bank of Sudan led to an enforcement of the new rules.
The Sudan’s experience with Islamic finance is paradoxical.
Economically speaking, the experiment has been a failure; the financial
sector is extremely weak. The IMF estimated in 1998/1999 that 18-19
per cent of bank loans had to be categorised as ‘non-performing’.
216 OLAF KÖNDGEN

Reasons for this weakness include factors external to Islamic finance

such as high inflation rates, worsening terms of trade due to declining
agricultural production, and the war in the South. Yet, factors inherent
to the experience of Islamic finance in the Sudan, often in conjunction
with a lack of political control, also contributed to the low performance
of Islamic finance. Thus, the Bank of Sudan did little to supervise
banks and curb fraud and corruption in connection with lending prac-
tises. Only in the late nineties did it introduce restrictions on loans to
the higher management of banks and a ban on additional loans to al-
ready indebted customers (Stiansen 2004a: 164). Further, banks suf-
fered from high default rates in agricultural finance, especially with re-
gard to advance contracts (salam). In years of bad harvest, farmers saw
themselves incapable of delivering what they had sold to the bank
through such contracts. If no agreement with the bank could be
reached, many farmers resorted to not harvesting at all. A breach of
contract by farmers under such circumstances was accepted by the
Sudanese government, but led to losses for banks of up to 50 per cent
in agricultural investments (ibid).
In political terms, however, the introduction, application, and further
development of a wide range of tools of Islamic finance has been a suc-
cess. Sudanese banking laws until 2005 were based entirely on the
Qur´an and Sunna, with convential, interest-based financial tools elimi-
nated from the system. Despite these precautions, strong vestiges of in-
terest-based financial techniques survived at least until the mid-nine-
ties.43 A further advantage for the regime, and closely connected to the
application of Islamic finance, is the transfer of wealth to groups closely
associated with the regime (Stiansen 2004a: 165).
The Comprehensive Peace Agreement 2005 alongside the Interim
National Constitution, however, has changed the legal framework and
context of finance in the Sudan. In fact Article 201(2) of the Interim
Constitution provides for the establishment of a dual banking system
consisting of an Islamic banking system in the North and a conven-
tional banking system in Southern Sudan. The Central Bank shall be re-
sponsible for the use and development of both sets of banking instru-
ments, the Islamic one and the conventional one (Art. 202(1)). The
Bank of Southern Sudan, as a branch of the Central Bank of Sudan,
provides, inter alia, conventional banking services (Art. 201(3)) to
Southern Sudan. Likewise, the Central Bank of Sudan implements its
monetary policy through an Islamic financing window in Northern
Sudan and, managed by the Bank of Southern Sudan, through a con-
ventional window in Southern Sudan (Art. 202(1)(a-b)).
SHARI‘A AND NATIONAL LAW IN THE SUDAN 217

Zakat
A national system of voluntary donations of wealthy Sudanese and com-
panies was first institutionalised in 1980. With the application of the
Zakat and Taxation Act in September 1984, however, zakat lost its char-
acter as a religious alms tax and took on instead the form of another tax
within the existing taxation system. A Chamber of Zakat (diwan al-za-
kat) under the supervision of the president was created, but the col-
lected sums were not managed on separate zakat accounts. Rather, they
entered the very state budget they were intended to support. After the
downfall of Numeiri in 1986, a new law on zakat made the zakat ad-
ministration autonomous. From now on the collected sums were mana-
ged separately from the public treasury. The state, however, continued
to supervise the use of zakat through the Ministry of Social Affairs. The
last legislation on zakat was a presidential decree in 2001 which reorga-
nised its collection on the national and regional levels (Converset &
Binois 2006: 41-44).
Originally zakat was also levied on the salaries of all Sudanese citi-
zens. However, due to a large amount of unregistered employment and
a lack of control, this system became unmanageable. Today, unofficial
zakat, i.e. voluntary zakat given by individuals, is not paid to the state,
but is normally distributed within the families and relatives of the dona-
tors (Converset & Binois 2006: 45). In contrast, official zakat is levied
on all commercial companies, farms, cattle-breeding and dairy opera-
tions, poultry farms, fisheries, and more. The proceeds are distributed
in kind (cereals, flour, sugar, dates, lentils, etc.) to local institutions,
such as hospitals, orphanages or qur´anic schools or in cash in the form
of subventions or salaries paid especially to social or health institutions
(Converset & Binois 2006: 53).
Some authors claimed in the mid-nineties that the funds levied were
being partially re-funnelled into the Islamisation programme, the war
in the South, efforts to proselytise prisoners of war, and possibly even
used to the personal benefit of high-ranking government supporters
(Lauro & Samuelson 1996: 9). Criticism has not fallen silent in more
recent times. In particular, critics express concern with maladministra-
tion of the collected money, lavish spending on cars and buildings, and
the sumptuous lifestyle of parts of the zakat management and person-
nel (Converset & Binois 2006: 42).

5.9 Human rights obligations

The Sudan is party to a number of international human rights treaties,

including the International Covenant on Economic, Social, and Cultural
218 OLAF KÖNDGEN

Rights (ICESCR), the Covenant on Civil and Political Rights (ICCPR),

the Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), and the Convention on the Rights of the
Child (CRC). Further, the Sudan is party to the Convention on the
Prevention and Punishment of the Crime of Genocide, the Slavery
Convention, and the Convention relating to the Status of Refugees. The
Sudan is also party to the International Convention on the Suppression
and Punishment of the Crime of Apartheid and the African Charter on
Human and Peoples’ Rights. The Sudan has signed, but not yet ratified,
the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). The Sudan is not a party to
the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW). With regard to the CAT and CEDAW, the
government argues that some of the articles in the two conventions do
not comply with the principles of shari´a. In January 2001, President
Bashir reportedly said that the Sudan would not sign CEDAW because
it was held to contradict Sudanese family values. As of early 2010, the
Sudan still had not become party to the two conventions.44
Immediately after the 1989 coup, the Bashir regime suspended the
1985 Transitional Constitution and ruled by constitutional decrees en-
acted by the Revolutionary Command Council (RCC). In relation to this,
the Sudan’s initial report (1991) to the U.N. Human Rights Committee
lodged a derogation concerning its obligations under the ICCPR:

It became expedient to proclaim a state of emergency with the

inevitable derogation from Sudan’s obligations under the
Covenant on Civil and Political Rights […] With the achievement
of more progress in the peace process and the establishment of
the political system, that state of emergency will be naturally
lifted and the derogation from Sudan’s obligations under the
Covenant will be terminated forthwith.

Since that 1991 report, first in 1998, and then in 2005, new constitu-
tions have been enacted, the first of which, in turn, has been partially
suspended due to the imposition of emergency law in 1999. It is un-
clear whether with the lifting of the state of emergency in 2005 in most
of the Sudan the above derogations have become groundless.

Legal contradictions between the shari´a and human rights in national and
international law
The INC of 2005 (see 5.5) does not mention international human rights
as a source of legislation. Article 27 states that ‘all rights and freedoms
enshrined in international human rights treaties, covenants and
SHARI‘A AND NATIONAL LAW IN THE SUDAN 219

instruments ratified by the Republic of the Sudan shall be an integral

part of the Bill of Rights (i.e. the INC). It is, however, not clear that
these international human rights treaties and conventions enjoy the
same legal recognition as other articles of the constitution, nor does the
INC explicitly mention that these treaties and conventions are enforc-
able in Sudanese courts.45
In fact, in many instances the INC subjects itself to ‘prescribed laws’,
thus inverting the usual practise of the hierarchy of norms.46 To date,
little progress has been made concerning the adjustment of statutory
laws in order to make them compliant with the Interim National
Constitution and international human rights conventions to which the
Sudan is party.47
Thus, Sudanese criminal legislation is clearly in conflict with the
country’s commitments under Article 7 of the ICCPR, banning torture,
cruel, inhuman, and degrading treatment. Especially shari´a-based pun-
ishments such as flogging, stoning, crucifixion, and amputation as sti-
pulated in the 1991 Penal Code plainly contradict the ICCPR. While I
could not find any trace of an execution of stoning, the punishment of
flogging is imposed and executed on a regular basis. While Article 14(5)
of the ICCPR guarantees the right of appeal, sentences to flogging in
accordance with the Security of the Society Law are in practice carried
out instantaneously, and without counsel. The Criminal Act (CA) 1991
allows in cases concerning the hudud and qisas the death penalty for in-
dividuals below the age of 18, while the ICCPR and the CRC both pro-
hibit death sentences against offenders who have not yet reached the le-
gal age of maturity. The hadd offence of apostasy and its respective pun-
ishment constitute a violation of Article 18(1) of the ICCPR, which
guarantees freedom of thought, conscience, and religion. It is also dis-
criminatory in its differential treatment of adherents of the different
faiths.
Important shari´a-based stipulations of the CA do not exempt non-
Muslims in the northern governorates. Thus, Article 168(1) on armed
robbery (hiraba) provides for the death penalty and/or crucifixion for
Muslims and non-Muslims alike. Similarly, Article 171(1) punishes capi-
tal theft (sariqa) with amputation of the right hand, irrespective of the
faith of the offender. It goes without saying that cruel corporal punish-
ments as such constitute a human rights violation, no matter whether
the person sentenced is Muslim or not. In practice non-Muslims in the
North are frequently victims of shari´a-based legislation on alcohol-re-
lated offences. Thus, the majority of prisoners in the Omdurman
Women’s Prison were imprisoned for alcohol-related offences. More re-
cently, the Sudanese government seems to have taken measures to recti-
fy this situation.48
220 OLAF KÖNDGEN

While the Sudan has not yet signed CEDAW, it is important to men-
tion that the Muslim Personal Law Act 1991 is in contradiction with
Article 16 of CEDAW, which calls for equal rights of men and women
with regard to their rights to enter a marriage out of their free will and
equal rights with regard to its dissolution, and with regard to equal
rights and responsibilities as parents and concerning guardianship
(Tønnessen & Roald 2007: 27-29). CEDAW also calls on state parties to
accord women equality with men before the law (Art. 15). This provision
is in clear contradiction with the reduced status of female witnesses in
the Sudanese Evidence Act 1993.
Apart from contradictions between the Sudan’s obligations under the
ICCPR and other human rights covenants and its shari´a-based national
legislation, there are many examples of violations of the Sudan’s inter-
national obligations at a de facto level. In addition to the well-known
mass killings and mass rape in Dar Fur, one of the most blatant human
rights violations that has long persisted throughout the country is the
recurrent scourge of slavery. Banned by both the ICCPR (Art. 8) and
the Slavery Convention, it has nevertheless continued to be practised
with impunity (Lobban 2001 and Darfur Consortium 2009).

5.10 Conclusions

Diversity of legal systems that influenced the Sudan

As this study demonstrates, the Sudanese legal system has been shaped
and influenced by a variety of sources since the nineteenth century: by
Ottoman-Egyptian law in the nineteenth century, by common law from
the beginning of the condominium rule in 1898, by jurisdiction and
laws either influenced by or based on the shari´a throughout the history
of Islamic Sudan, by modern Egyptian civil law since the early 1970s,
by customary law during the entire history of the Sudan, and by the di-
verse family laws of different denominations. While the different ingre-
dients have occupied different spaces at different times, certain tenden-
cies can be filtered out for the post-colonial period.
The camp advocating for Egyptianisation of the legal system can
claim victory for the important field of civil law. After the failed intro-
duction of a slightly modified version of Egyptian civil law in 1971, a
second attempt in 1984 was successful. The Sudan has, thus, joined the
large group of Arab states that have adopted Egyptian civil law.49
Further, the Sudanese legislation has to some extent since 1983 gone
through an accelerated process of Islamisation. For more than twenty
years, two autocratic regimes have expanded the influence of the shari´a
to the detriment of Sudanese legal tradition and customary law. The
shari´a has importantly influenced criminal legislation, banking laws,
SHARI‘A AND NATIONAL LAW IN THE SUDAN 221

taxation laws (zakat), the 1998 and 2005 constitutions, and, as in most
Muslim countries, family and inheritance laws for Muslims.50
However, with regard to the actual implementation of the hudud it
has been noted that ‘the new legislators seemed rather keen to give an
impression of moderate and considerate application as opposed to the
cavalier deployment that characterised the 1983 experiment’ (Sidahmed
1997: 220). Even though no precise statistics for the number of ston-
ings, crucifixions, floggings, and limb amputations inflicted between
1989 and 2008 is available, a synopsis of the relevant human rights re-
ports since 1989 corroborates Sidahmed’s assumption. Enhancing the
regime’s legitimacy and drawing a boundary ‘within which the regime
accommodates or excludes other political forces’ (Sidahmed 1997: 222),
the shari´a – well embedded in a multitude of Islamisation measures –
has ostensibly fulfilled the regime’s need for Islamic symbolism.
At present, the Sudan possesses a legal system that is characterised
by a high degree of legal pluralism. The heritage of the common law is,
despite the ups and downs of twenty years of Islamisation efforts, still
clearly visible in two important aspects: first of all, certain laws of the
time of the condominium are still valid, and, secondly, more recent leg-
islation can be traced back to the condominium in terms of organisa-
tion and wording. Most significantly, despite efforts of the Bashir gov-
ernment to marginalise it, customary law is still of major importance in
the rural areas of the Sudan. It is estimated that as much as 80 per cent
of all cases in the Sudan are judged in accordance with customary law.51

Resistance in the North and in the South

The Islamised legislation, introduced by former President Numeiri and
reinforced by the current President Umar al-Bashir continues to be ob-
jected to by the non-Muslim minority living predominantly in Southern
Sudan and in and around the capital Khartoum. Fears of further
Islamisation and deep disagreement concerning the Sudanese religio-
political identity fuelled the armed rebellion in the South from 1983 to
2005. Compromises over shari´a legislation as negotiated in the 2004
Naivasha peace protocol and stipulated in the Interim National
Constitution are a step in the right direction. However, underlying,
more complex questions such as the nature of a future constitution,
which must include acceptable formulas on democracy, the rule of law,
and Sudanese identity, will have to be tackled first.
It can be safely assumed that there is important opposition to the cur-
rent variant of Islamised legislation in the North as well. It was not
without reason that the major thrust for the Islamisation of the legal
system came from rather unpopular autocratic regimes. However, dur-
ing the short-lived democratic interludes (1964-1969 and 1985-1989),
222 OLAF KÖNDGEN

the traditional sectarian parties have neither managed to present a vi-

able constitution nor have they translated their own calls for a shari´a-
based legislation into lasting concepts, simultaneously acceptable to the
Muslim majority and reassuring the non-Muslim minority at the same
time.

Contradictions with human rights conventions

The Islamisation programme has also led to serious contradictions be-
tween the Sudan’s obligations under international human rights cove-
nants and its national shari´a-based legislation. Sudanese government
officials have forwarded arguments to counter criticism. At a base level,
they maintain that international human rights legislation, such as the
ICCPR, forms an integral part of the Sudan’s national legislation and
can be invoked before national courts within the Sudan.52 Another pop-
ular argument is that ‘the rights of the individual [i.e. in an Islamic so-
ciety] should not prejudice the rights of the community or its public in-
terest’. In other words, the rights of the Muslim community supersede
the rights of the individual, irrespective of international treaties.
Further to this point, President Bashir has excluded the Sudan’s future
adherence to CEDAW, claiming that it contradicts Sudanese family
values.
It is indeed the case that the Sudan’s Islamisation programme, facili-
tated by emergency laws, has led to a multitude of human rights viola-
tions, stemming, among other motives, from a profound disregard of
the Bashir regime for the rights of religious minorities, women, non-
Arab Muslims, and those professing views of Islam differing from the
official Sudanese regime position. Many of the Sudan’s human rights
violations, however, have no relation whatsoever to shari´a. They must,
rather, be attributed to the regime’s efforts to stay in power at all costs.
Islam, in this context, only serves as one instrument among many
others, to attain this goal (Böckenförde 2008: 88).

Perspectives for the future

The January 2005 Comprehensive Peace Agreement (CPA) between the
Sudanese government and the SPLM was supposed to lead to important
reforms of the legal system. A new constitution is a key issue on the
agenda. Apart from some limited changes, the CPA has, however, not
yet led to a substantial revision of criminal legislation. Rather, the gov-
ernment stalled any legal reform that could be construed either by its
opponents or by its followers as a gradual retreat from its pro-shari´a
positions. The CPA, as much as it has been welcomed by the interna-
tional community, represents a piecemeal approach. In order to achieve
SHARI‘A AND NATIONAL LAW IN THE SUDAN 223

a lasting peace in the whole of the Sudan, the regime needs to come to
terms with its opponents in Dar Fur, in Eastern Sudan and abroad as
well. Only then can legal reforms be expected that take into account the
interests of secular Muslims and non-Muslim minorities.
For the time being, several committees concerned with elaborating le-
gal reforms have been set up. Thus, the National Constitutional Review
Commission (NCRC), provided for by the CPA and composed of mem-
bers from several political parties, has identified over sixty laws in con-
tradiction with international human rights standards. It is currently
working on certain priority areas such as arrest procedures, rape legisla-
tion, evidence laws, and immunity.53 In 2006 already, the Legislative
Standing Committee of the National Assembly (Majlis Watani) had
singled out twelve laws for priority areas of reform, including among
others the Criminal Act, the Criminal Procedure Act, and the Evidence
Act. Other steps were the adoption of a National Action Plan on
Combating Violence against Women in 2005 and a new Armed Forces
Act (2007), which recognises rape committed in war as an international
crime. In 2009 international crimes, such as crimes against humanity,
genocide and war crimes, were incorporated in the Criminal Code.
Observers, however, are doubting ‘whether these changes can result in
effective application’ (REDRESS 2009: 37-38). The same observers have
pointed out that the law reform process since the signing of the CPA
has been hampered by a lack of transparency, delays, and ‘the lack of
mechanisms that ensure the conformity of reformed legislation with
the provisions of the INC and the CPA’ (REDRESS 2009: V).
In a nutshell, in the beginning of 2010 the Sudan’s outlook is rather
bleak. The implementation of the Comprehensive Peace Agreement has
been obstructed by the North from the beginning. But not only the
CPA, also the Darfur Peace Agreement and the East Sudan Peace
Agreement lack proper implementation. With less than a year to go un-
til the referendum on the South’s self-determination, the referendum
will most likely end in a decision in favour of the South’s separation.
Given the profound lack of trust between both sides a return to the
North-South war is looming (International Crisis Group 2009: 1). What
these developments will mean for the space the shari´a occupies in the
legal system of the Sudan remains to be seen. If indeed a new civil war
between the North and the South breaks out, guarantees for non-
Muslims given under the INC will become meaningless. Should both
sides manage to disentangle peacefully, an important source of pressure
against shari´a application would disappear. In either case, the shari´a is
likely to hold its ground in the legal system of the Sudan.
224 OLAF KÖNDGEN

Notes

1 The author wishes to thank Prof. Abdullahi Ahmad An-Na´im, Dr Hamouda

Fathelrahman, and Noah Salomon for reading and commenting on this article. He
also thanks Julie Chadbourne for her meticulous proofreading. Olaf Köndgen holds
an M.A. in Islamic Studies from the Free University of Berlin and is currently prepar-
ing a Ph.D. dissertation on Islamic criminal law in the Sudan (University of
Amsterdam).
2 Estimates of the number of Christians vary widely. Some sources claim that very suc-
cessful missionary activities have increased the percentage of Christians up to 20%
of the overall population.
3 As to the paucity of studies of this era, see Bleuchot 1994: 161-185 and Köndgen
1992: 15.
4 The Malikite madhhab was the traditional school in the Sudan until the introduction
of the Hanafite school.
5 See also the revealing dialogue between Hasan al-Turabi and Phillip Abbas Gobosh
in An-Na’im 1985: 329.
6 A small minority, however, preferred to break off and establish their own organisa-
tion. This splinter group called itself ‘the Muslim Brotherhood’, while the majority
faction was organised as the National Islamic Front under their political leader
Hasan al-Turabi.
7 In 1983 alone, around 640,000 refugees from Ethiopia, Uganda, and Chad entered
the Sudan. See also Abd al-Rahim 1989: 284.
8 Warburg 2003: 187 maintains that Numeiri dismissed al-Turabi ‘so that he would not
claim the credit for the Islamic laws’.
9 The 1983 Penal Code stipulated hadd punishments for crimes similar to hadd of-
fences, but not covered by traditional definitions (Köndgen 1992: 42-44).
10 During a prison term in 1946-1948, Taha had developed his own legal theory, propa-
gating a liberal version of the shari´a, adapted to the needs of modern society. Based
on his teachings, the Republican Brothers, who had never participated in elections as
a political party, called for a democratic state with equal rights for Muslims and non-
Muslims and for both men and women. On the juridical aspects of the Taha case see
An-Na´im 1986. On Taha and his weltanschauung see Rogalski 1990: 59-121.
11 See discussion in e.g. ‘Mahmoud Taha – Sudan’s new martyr?’, Middle East, February
1987.
12 See Sudan Monitor, December 1990, Vol. 1, issue 6.
13 However, the elections were a setback for the DUP who gained only 63 seats instead
of the 101 seats it had won in 1968. The Umma, in contrast, went up from 72 seats
(1968) to 100 seats. See also Kok 1995: 43-49.
14 Altogether, 48 seats remained unoccupied as a result of the war (Kok 1991: 45).
15 See e.g the 1989 article ‘Les Chrétiens et la Législation sur la Shari’a au Soudan’, in
Islam et Societés au Sud du Sahara 3.
16 Flogging, used rather summarily under the September laws, had been limited to
hadd offences.
17 In an interview with al-Turabi’s son Sadiq Hasan al-Turabi, it was confirmed that the
imprisonment of his father was meant to cover up his involvement in the coup.
Personal communication with Sadiq Hasan al-Turabi, dated 10 June 2004.
18 This information was confirmed in an interview with a lawyer at the Institute of
Training and Legal Reform in Khartoum on 8 June 2004. However, according to the
same source, three women were shortlisted for positions as judges in June 2004.
19 See BBC News online, ‘Sudan strongman Turabi arrested’, dated 21 February 2001;
See BBC News online, ‘Sudan Islamist leader released’, dated 13 October 2003.
SHARI‘A AND NATIONAL LAW IN THE SUDAN 225

20 See http://www.reliefweb.int/library/documents/2005/govsud-sud-16mar.pdf.
21 The Heidelberg-based Max Planck Institute for Comparative Public Law and
International Law (MPI) originally helped to prepare a constitutional framework for
the content of the six separate peace protocols. However, the MPI ‘Draft
Constitutional Framework for the Interim Period’ was not adopted by the Sudanese
government. Subsequently, the Sudanese government, against the wishes of the
SPLM, excluded the MPI from the process and instead relied on their own legal ex-
perts. See http://www.qantara.de/webcom/show_article.php/_c-476/_nr-593/i.html.
The MPI’s draft is downloadable on its website.
22 See http://www.cushcommunity.org/constitution.pdf.
23 For the full text of the Interim Constitution 2005 see the website of the Max Planck
Institute: http://www.mpil.de/shared/data/pdf/inc_official_electronic_version.pdf.
24 The hanging of Taha in 1985 is to my knowledge until today the only known execu-
tion in the Sudan on the grounds of apostasy.
25 Non-Muslim university graduates have difficulty finding government jobs. There is
an undeclared policy of Islamisation of public services in place, leading to non-
Muslims losing their jobs in the civil service, the judiciary, and other professions.
Christian secondary school students have not been allowed to finish their obligatory
military service because they attended church (U.S. Department of State 2003). This
is critical because students who do not complete their military service are not per-
mitted to study at universities. There are also recurrent reports of hadd punishments
being inflicted on Christians. Furthermore, while Muslims may proselytise among
non-Muslims, proselytisation among Muslims is de facto excluded, since apostasy of
Muslims is punishable by death.
26 The newly formed National Legislature, whose members were chosen in mid-2005,
has two chambers: the National Assembly (Majlis Watani), i.e. the Lower House and
the Council of States (Majlis Wilayat), the Upper House. The National Assembly con-
sists of 450 appointed members, representing the government, former rebels and
other oppositional political parties. The Council of States consists of 50 members.
These are indirectly elected by state legislatures.
27 For details on Dinka law see e.g. Makec 1986.
28 ´idda: period after a divorce during which remarriage is prohibited in order to guar-
antee that the wife is not pregnant by her ex-husband.
29 After the downfall of Numeiri in 1985, none of the subsequent military and civilian
governments abolished the Islamised penal code, which was introduced in
September 1983. After long discussions and some cosmetic modifications (Köndgen
1992: 61-72), the Ministry of Justice, with Hasan al-Turabi as minister and chief pub-
lic prosecutor at the time, finally submitted a new draft penal code in September
1988. The draft did not have majority support in parliament. However, the new
Bashir military Islamist regime that came to power a year later in 1989 drew signifi-
cantly from the 1988 draft law when it promulgated the Sudan Criminal Act in 1991.
30 For an in-depth comparison between hadd offences as defined in the Criminal Act
(1991) and traditional Islamic jurisprudence (fiqh) see Scholz 2000.
31 ‘Dealing in alcohol’ in the definition of Article 79, CA91 includes storing, selling,
purchasing, transporting, and possessing with the intention of dealing therein with
others.
32 See cases of Mariam Muhammad ‘Abdallah (1985) and Amina Babikr Ahmad (1985),
published in Sudan Law Journal and Reports (SLJR) of the same year.
33 See e.g. cases of Mariam Muhammad Sulaiman (1989) and Kalthum ´Ajabna (1992),
published in Sudan Law Journal and Reports of the same years. Compare analysis in
Sidahmed 2001.
226 OLAF KÖNDGEN

34 Interestingly, the concept of muhsan/non-muhsan, which is derived from Islamic

criminal law, is applied here to Sudanese citizens who live in areas exempted from
the application of the shari´a.
35 For the somewhat contradictory legal situation as of 2005, see chapter 5.5
‘Constitutional Law’.
36 Compare also Articles 30-32: on multiple retribution; reasons for the remittance of
retribution; and on the relatives of the victim who are entitled to retribution.
37 These provisions, however, become applicable if the accused himself requests their
application or the legislative body concerned decides to the contrary. Compare
Criminal Act (1991), Art. 5(3).
38 Ratified in October 1996 by the Khartoum State Council as the Khartoum State
Public Order Act 1996 in its original form. The Khartoum State Public Order Act
was valid only in the Governorate of Khartoum. Similar laws were promulgated in
other governorates of the Sudan. See also SIHA (2009): 9-10.
39 During my visits in 2004 and 2009 I observed that this provision was not enforced
in Khartoum.
40 A case that found a lot of attention from Western media was the arrest of Lubna
Hussein, a well-known Sudanese journalist. She had been arrested in a restaurant
for wearing trousers, together with twelve other women. Hussein, however, was in-
dicted under Article 152 of the Criminal Code (1991), not under the Security of the
Society Law. See SIHA 2009: 5-6.
41 In this formative phase of Islamic banking in the Sudan, before 1983, some of the
newly established banks called themselves ‘Islamic’ without offering interest-free
banking (Stiansen 2004a: 157).
42 For a discussion of Islamic financial contracts as applied in Sudan see Stiansen
2004b: 80-89.
43 It should be noted that the Sudanese government accepts interest-based foreign
loans.
44 For CEDAW see http://www.un.org/womenwatch/daw/cedaw/reports.htm#s, for
CAT see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
9&chapter=4&lang=en.
45 The INC explicitly states that rights described in its Chapter II (“Guiding Principles
and Directives”) are “not by themselves enforceable in a court of law (art.22).” For a
detailed critique of the 2005 Interim National Constitution see ‘Observations on the
Transitional Constitution’, The Sudanese Human Rights Quarterly 20 (January 2006).
46 See for example the freedom of beliefs (Art. 38), the right to vote (Art. 41), and the
right to own property (Art. 42).
47 On the conflict between Sudanese criminal law and human rights see e.g. REDRESS
2008.
48 According to a government statement, around 800 individuals convicted for alcohol-
related offences were released. See REDRESS 2008: 11.
49 For example, Jordan, Iraq, Syria, Algeria, Yemen, Kuwait, and others. See Krüger
1997. Witness to the importance of Egyptian civil law for Sudanese jurists are
Khartoum’s book shops. Wherever legal literature is available, Egyptian commen-
taries abound.
50 This is to name the most important legislation of the present regime. It should be
noted that systematic research on the influence of Islamic law on the Sudanese legis-
lation from 1989 until present is lacking.
51 Interview with Supreme Court judge, Khartoum, on 6 June 2004.
52 International human rights law is indeed invoked by Sudanese attorneys before
Sudanese courts. See personal communication with Noah Salomon, University of
SHARI‘A AND NATIONAL LAW IN THE SUDAN 227

Chicago, on 30 April 2004. I am, however, not aware whether these attempts were
successful.
53 For an assessment of current legal reform projects see REDRESS 2009.

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6 Islam and national law in
Turkey1

Mustafa Koçak2

Abstract

This study examines the effect of religion on the national law in

Turkey from the time of the nineteenth century Ottoman State un-
til the present. The period of secularisation of the law, which be-
gan with the 1839 Tanzimat (Reorganisation), was largely com-
¨
plete after the declaration of the Republic, at which time Ataturk
initiated a course of staunchly secular reforms, including the
abolishment of the constitutional clause that had previously iden-
tified the state’s religion as Islam. After the transition to a multi-
party regime in 1945 more liberal policies in the field of freedom
of religion and conscience were explored. Within the freer envir-
onment introduced by the Constitution of 1961, new opportu-
nities for the organisation and expression of Marxist and social
democratic party ideologies emerged, along with efforts of
groups to expand upon religious freedom. A loosening on the
tight state control of the strictly secular operations within the
country has been greatly facilitated by the E.U. membership ne-
gotiations and the adoption of the E.U. acquis communautaire.
Even in light of what appears to be increased calls for religiosity
over the last decades, however, Islam has had no effect on law,
no religious reference has been made in legal texts, and a secular
understanding of the organisation of the state has consistently
been executed since 1928. The main debate in Turkey is not
about Islamisation of the law, but rather about the expansion of
freedom of religion and conscience.
Table of contents
6.1 The period until 1920. The Ottoman Empire and its
modernisation 233
6.2 The period from 1920 until 1965. The move toward a fully
secular republic 240
Law reforms in the Turkish Republic 241
Transition to a multi-party regime 245
The first military coup and a new constitution 246
6.3 The period from 1965 until 1985. Grappling with the
division between religious identity and political influence 246
The second military coup and the Constitution of 1982 247
6.4 The period from 1985 until the present. Defending the
laic order – The battle against visible signs of Islamism 249
Legislation banning the Turban 250
Banning parties in the name of democracy 251
The period of the Justice and Development Party and the
decision of the European Court of Human Rights concerning
the Turban 252
Regime discussions and the search for a new constitution 254
6.5 Constitutional law 258
The Office of Religious Affairs (Diyanet) 259
Banning of parties 259
Mandatory religious education 261
6.6 Personal status, family, and inheritance law 262
Personal disclosure of religious information 263
6.7 Criminal law 264
6.8 Commercial law and banking 264
6.9 International agreements concerning human rights 264
6.10 Conclusion 265

Notes 268
Bibliography 271
ISLAM AND NATIONAL LAW IN TURKEY 233

The Republic of Turkey was created in 1923 out of the remnants of the
Ottoman Empire. According to the 2007 census Turkey’s population is close
to 71 million and is almost completely Muslim (99.8%). The remaining 0.2
per cent is mostly made up of Christian and Jewish communities. Turks are
by far the largest ethnic group in the country, with Kurds forming the most
significant community alongside Arab, Armenian, and Greek communities.
While Turkish is the official language of the country, Arabic, Kurdish,
Armenian, and Greek are also spoken.3

(Source: Bartleby 2010)

6.1 The period until 1920

The Ottoman Empire and its modernisation

Throughout the eighteenth century there had been protracted debate be-
tween the Ottoman governing class and the religious scholars (ulama)
on how to make the Ottoman regime more effective. Since the reign of
Selim I between 1512 and 1520, the Ottoman sultans had been without
doubt the most powerful Muslim rulers in the world. They ruled over
large parts of the Middle East, North Africa, and the Balkans and were
also the guardians of the three holiest cities of Islam, Mecca, Medina,
and Jerusalem. As a result ‘Sunnite orthodoxy and the shari’a (şeriat),4
expounded by the ulama (learned men) of the Arab world, had become
important at the Ottoman court’ (Davison 1990: 9).
Confronted with the expansion of the European economic and mili-
tary spheres of influence in the seventeenth and eighteenth centuries,
the Ottoman leaders were divided into two camps. The conservatives fa-
voured a return to the laws of Süleyman (Sulaiman) I (1520-1566) and
resisted any reformist movement towards embracing the Judeo-
Christian European laws, concepts, and techniques. In contrast, refor-
mists called for the adoption of Western methods of military training,
organisation, and administration and for civil, economic, and educa-
tional changes as part of the necessary requirements of a modern state.
The conservatives pointed to the prescripts of orthodox Islam, stating
that state and religion are inseparable. The ruling elite, for its part, at-
tributed the weakening of the Empire to religious bigotry (Toprak 2003:
120-121).
It would, however, be overly simplistic to claim that one camp advo-
cated the shari’a and the other the Western legal tradition. In fact, the
Ottoman legal system had already consisted of two different laws for
centuries:
234 MUSTAFA KOÇAK

According to Tursun Bey, writing in the late fifteenth century,

the sultan could make regulations and enact laws entirely on his
own initiative (siyasa). These laws, independent of the şeriat and
known as kanun, were based on rational and not religious prin-
ciples and were enacted primarily in the spheres of public and
administrative law (İnalcık 1989: 70).

The area left to the will (irade) of the Ottoman sultan was free from the
limitations of the shari’a. He could enact laws (kanun) in various forms
in accordance with – but outside the realm of – the shari’a on the basis
of his right to discretion and censure (takdir and tazir), as recognised
by the shari’a (Berkes 1998: 14). As İnalcık writes, ‘[w]ith the spread of
Turkish rule in the mid-eleventh century, the principle of kanun became
firmly established in Islamic legal practice, since, in Turkish tradition,
sovereignty and the establishment of a royal code of laws and töre were
intimately related. Furthermore, rulers did not wish to recognise any
limitation to their political authority’ (1989: 70). Schacht further ex-
pands on this notion, explaining that:

In fact the very first of these Ottoman kanun-names, that of

Sultan Mehmed II (1451-1481), repeatedly refers to Islamic law
and freely uses its concepts. It treats, among other matters
(Office of the Grand Vizier, court, ceremonial, financial ordi-
nances) penal law; it presupposes that hadd punishments are ob-
solete and replaces them by ta’zir, i.e. beating, and/or monetary
fines which are graded according to the economic position of
the culprit. In fact, these provisions go beyond merely supple-
menting the sharia by the siyasa of the ruler, and amount to
superseding it. The so-called kanun-name of Süleyman I, which
in its major parts seems to have been compiled previously under
Bayezid II (1481-1512), shows a considerable development along
these lines (1964: 91).

In line with these developments, the punishment of rejm (killing by

stoning of an adulterous woman) was first and last seen in the Ottoman
State in 1680 (Öztuna 1978: 200; Akyavaş 1950). Sultan Mehmet IV,
who watched the execution of this punishment in Sultanahmet Square
(Gökçen 1989: 68), put an end to this punishment, stating, ‘[ f ]rom
now on, I do not want such disgrace in the Ottoman lands’ (Toprak
2003: 118).
After 1800, the reform-minded, who were in favour of modernisation
based on European models, began gaining ground relative to the con-
servatives. The Ottoman Empire could no longer defend itself against
the growing military power of Europe, nor ward off European
ISLAM AND NATIONAL LAW IN TURKEY 235

commercial penetration. The realisation of this led Selim III (1789-

1807) to introduce the first programme of reforms, increase taxation,
establish the so-called New Order (Nizam-i Jedid), and establish a mod-
ern army and modern technical schools to train cadres for the new re-
gime. Selim’s reorganisation sparked protests from a conservative coali-
tion of certain military elites, religious leaders, and others who felt ad-
versely affected by the reforms. Selim was eventually deposed by
auxiliary conscripts in 1807. His successor, Mahmud II (1807-1839),
nevertheless continued the process of modernisation. He was helped in
this by the Grand Vizier Mustafa Reshit Pasha. For all reforms in the
aforementioned areas, an educational system was required to furnish
young Ottomans with the necessary knowledge. To this end, ‘liberal
schools’ were established based on educational principles different from
those prevailing in the rest of the Empire. From these schools there
emerged a new generation of reformers with a critical stance towards
the traditional (religious) institutions (Berkes 1998: 400-401).
In 1839, the regime proclaimed the ‘Noble Rescript’, a drastic pro-
gramme of reforms (the Hattı Şerif of Gülhane) developed by Reshit
Pasha; this programme also became known as the ‘Reorganisation’
(Tanzimat). The year 1839 was therefore crucial in the process of mod-
ernisation and Westernisation of the Ottoman Empire. It marked the
start of four decades of major changes throughout the Empire. These
changes encompassed the reorganisation of the Ottoman state struc-
ture, of civil, territorial, and trade laws, and of the judiciary. The
Constitution of 1876 completed this reform process.
Several important steps had, however, already been taken prior to
1839. Mahmud II had already enacted a number of administrative re-
forms, and in 1838 he promulgated two criminal laws for civil servants.
In addition, towards the end of his reign, Mahmud II changed the orga-
nisation of the state by establishing a semi-legislative institution which
was called the ‘Supreme Council for Justice Regulations’ (Meclis-i Valay-
i Ahkam-i Adliye). This advisory organ had the task of preparing laws to
carry out proposed reforms. The council worked on the basis of proce-
dures adopted from Western parliamentary democracies. Twenty years
later, in 1858, a new advisory organ independent of the Supreme
Council was created; the Supreme Council of Reformation (Meclis-i Ali-i
Tanzimat), whose membership included ministers, ulama, and high-le-
vel civil servants. Its main function was to prepare legislative designs
and regulations, and it generally concerned itself with the principles of
the reform policy, while the Supreme Council from then on exclusively
focused on matters of administrative adjudication (Bozkurt 1996: 134-
137).
In 1861, the two organisations were united into one body called the
Council for Judicial Ordinances (Cevdet Paşa 1986 I: 36; II: 153). This
236 MUSTAFA KOÇAK

council was, in turn, divided into three departments, according to the

principles of the separation of powers. The first department focused on
administrative matters, the second on the preparation of laws and regu-
lations, and the third on administrative adjudication (Űçok et al. 2002:
284). In 1868 the council was reorganised yet again. This time two judi-
cial authorities were created, a Supreme Civil Court and a Supreme
Administrative Court (the so-called Council of State). The former de-
partment functioned as the highest body of appeal for civil cases, and
the second became the first independent high administrative court
(Üçok et al. 2002: 284).
As a result of the 1839 Tanzimat (Reorganisation), several important
changes had already occurred in the field of criminal law. In 1840, a
new penal code was promulgated (Akagündüz 1986: 809). Because it
was already commonplace in the Ottoman state to punish offences that
were not recognised in Islamic law by using the sultan’s right as a pre-
Islamic ruler to promulgate laws (örf powers), there was little resistance
to this promulgation. It was the first criminal law in the Ottoman
Empire that applied equally to everyone. Article 1 of the first section of
the code formulated this principle as follows: ‘a shepherd in the moun-
tains and a vizier will be equal.’ In this way, the Ottoman law put an
end to the traditional practice in which Muslims received only half the
punishment non-Muslims received for the commission of the same of-
fence. The principle of equality and the formulation of this article illu-
strated the influence of Western law (Bozkurt 1996: 98). In 1851, an-
other new secular penal code was introduced, which recognised for the
first time the possibility of bringing a public suit against an accused.
The new code created in 1858, which in actual fact was a translation of
the 1810 French Penal Code, abolished the traditional hadd crimes, for
which punishments are ordained by the Holy Qur’an or Sunnah
(shari’a), with the exception of the death penalty for apostasy. This code
remained in force until 1926.

Changes took place across a whole range of legal areas. For example, in
1858 a Land Code was introduced (Cevdet Paşa 1986 iv: 73-74), which
incorporated a number of Islamic laws into a national codification. In
addition, closer ties with the West necessitated the introduction of com-
mercial legislation. The first law in this area came in 1850 in the form
of a commercial code (Örücü 1992: 45). This legal code was partially a
direct translation of the 1807 French Commercial Code (Velidoğlu
1999: 196-197). It included provisions concerning the payment of inter-
est, despite the fact that the payment and collection of interest were pro-
hibited by the shari’a. As such, this legislation constituted a radical step
that was then left to the newly-established (1840) commercial courts to
implement (Shaw & Shaw 1977: 118).
ISLAM AND NATIONAL LAW IN TURKEY 237

In 1861, a Code of Commercial Procedure was introduced based on

the French model; in 1863 the Maritime Commercial Code, which in-
corporated parts of French, Belgian, and Prussian law, was created; and,
in 1879, a Code of Criminal Procedure followed, the latter essentially
being a copy of the French Criminal Procedure Code of 1807.
Probably the most important legal reform of the nineteenth century
was the promulgation of a new civil code, the Mecelle. The first section
of the Mecelle was promulgated in 1868, and the code was completed in
1876. Ahmet Cevdet Paşa, a historian and jurist who lived from 1822
until 1895, wrote the biggest part of this grand piece of legislation. Ali
Paşa, the Grand Vizier, was an advocate of adopting parts of the French
Civil Code and making them the civil laws of the Ottoman Empire, as
had been done earlier in the case of the commercial code. Ahmet
Cevdet Paşa, however, insisted on following the Islamic tradition and as
such prepared a legal code firmly based on the shari’a (Lewis 1968:
122-123). Although the Mecelle only remained in force in Turkey until
1926, in other parts of the former Ottoman Empire it remained in use
for much longer. This codification proved also to have a significant in-
fluence on the Islamic world more generally, remaining in existence un-
til long after the code had been officially abolished following the estab-
lishment of the Turkish Republic.5
With regard to the Ottoman court system, a reform edict had come
into force in 1856 promising equality for all subjects. In order to live up
to the promises made to the Western powers, independent mixed courts
had already been established to hear civil and criminal cases involving
both Muslims and non-Muslim foreigners. In 1847, mixed courts were
established for criminal matters and in 1848 for commercial matters.
In 1856, a four-level secular court system was designed (Belgesay 1999:
215; Düstur 1872: 445) that culminated in the establishment of a secular
jurisdiction in 1869.
Two years later, in 1871, this new system came into force alongside
the shari’a courts and, in fact, reduced the authority and jurisdiction of
those shari’a courts (Shaw & Shaw 1977: 119). All matters except shari’a
were now within the competence of the secular (Nizamiye) courts.
The jurisdiction of the shari’a courts was limited to conflicts relating
to questions of personal status, family, and succession, subjects that the
courts had already handled prior to 1839 and 1871. There were, however,
frequent conflicts about jurisdiction between the two sets of courts that
ultimately led the Minister of Justice to declare a division of labour be-
tween the courts in a circular in 1877. Accordingly, marriage, divorce,
alimony, emancipation of slaves, analogy, blood-money (diyet), wills, and
succession were to be in the domain of the shari’a courts. Commercial
matters, penal matters, damages, and contract were to be dealt with by
the secular Nizamiye courts. Legal suits outside these areas were
238 MUSTAFA KOÇAK

covered by shari’a jurisdiction, if the parties involved consented to this;

they were otherwise subject to Nizamiye jurisdiction. Whereas conflicts
between the competing courts continued for decades (Bozkurt 1996:
124-125), the national court system was further consolidated by the com-
ing into force of a Code of Civil Procedure in 1879, which created civil
as well as commercial courts established on a secular basis.
During the process of codification that followed the establishment of
the Supreme Council of Reformation (Meclis-i Ali-i Tanzimat), no legal
provisions for marriage were enacted. There were also no provisions in
the Mecelle concerning family law. According to the 1881 Population
Regulation, Muslims wishing to marry required permission from the
Islamic judge (kadı), and non-Muslims had to obtain permission from
their own religious heads. The first Ottoman regulation of family mat-
ters came in the form of the Family Code of 1917, which will be ex-
plained later in detail.
Thus, over the course of about 35 years, the complete modernisation
of the Ottoman law was realised. The ideology underlying this change
was based on nationalism and modernisation, and later also on consti-
tutionalism. Lapidus comments on this period as follows: ‘The moder-
nist point of view was first espoused by the Young Ottomans in the
1860s and 1870s. While committed to the principles of Islam, they
called upon the endangered Ottoman regime to transform itself into a
constitutional government’ (2002: 460). Through this transformation
they also promoted a new social morality and revived national culture.
A process of constitutional change was initiated by the issuance of
the Ottoman Code of Public Laws, a series started in 1865 (Shaw &
Shaw 1977: 119). In 1876, taking advantage of the Ottoman defeat by
Russia, the constitutionalists staged a coup that brought Abdul Hamid
II to power (1876-1908). Under the pressure of the constitutionalists,
Abdul Hamid accepted a new constitution. This first Ottoman constitu-
tion (of 1876) was inspired by the Belgian Constitution of 1832 and the
Prussian Constitution of 1850 and established a democratic structure in
which the role of religious authorities was restricted. It also limited the
powers of the sultan, established a representative and decentralised ad-
ministration, and mandated equality for all religious groups.
The 1876 Constitution still declared Islam as the state religion and
set up the caliphate as a constitutional institution. As the Muslim
Caliph, the sultan was given the duty to protect and apply the rules of
the shari’a and to swear a religious oath accepting this responsibility.
The Sheikh ul-Islam (‘Şeyhülislam’ in Turkish), who was the dignitary
responsible for all matters related to religious law, religious schools, etc.
and next in line after the Grand Vizier, was appointed by the sultan as a
member of the Council of Ministers. The Sheikh ul-Islam was charged
with ensuring harmony between the laws and the shari’a. To this end,
ISLAM AND NATIONAL LAW IN TURKEY 239

he examined whether the laws conformed to Islamic jurisprudence

(fiqh) and the shari’a. But because the Sheikh ul-Islam belonged to the
Council of Ministers, he lost his power to issue authoritative legal deci-
sions (fatwas) independently. Likewise, his position within the Council
of Ministers gradually became less significant. The religious scholars
(ulama), who were incorporated into the civilian bureaucracy, also lost
their independence over time. As such, the bureaucratisation of the ula-
ma, a process that began under Mahmud II, had now reached its logical
conclusion (Tanör 2002: 267).
The Constitution of 1876 furthermore established a Parliament con-
sisting of two chambers: an elected Chamber of Deputies and a Senate
consisting of members of both Muslim and non-Muslim communities,
nominated by the sultan. On the various regional and local levels, ad-
ministrative councils were created consisting of the chief judge, the
chief finance officer, and the chief secretary; these functionaries were
joined by Muslim and non-Muslim representatives and religious leaders
from both the Muslim and non-Muslim communities (Lewis 1968:
388). These representative institutions restricted the monarchical and
theocratic character of the Ottoman system.
Neither the Constitution of 1876 nor the new parliament proved dur-
able; before long, the sultan suspended parliament and set up an
authoritarian and religiously conservative regime. As head of Islam,
Abdul Hamid claimed global authority over all Muslims (Lapidus 2002:
496-497). His regime would be the last of the centuries-old Ottoman
Empire.

In 1907, a Congress of the Young Turks established the Committee for

Union and Progress (CUP). Following a military coup, the CUP and the
army came into power together (Lapidus 2002: 497). They created a
parliamentary government and forced the sultan to reintroduce the
Constitution of 1876. This constitution, with the inclusion of a few
amendments, was then put into effect for the second time. As a reac-
tion to the pan-Islamic policies of Sultan Abdul Hamid II (1876-1908),
the Young Turks went from being Islamic modernists to being cham-
pions of secular constitutionalism (Lapidus 2002: 460).
Between 1913 and 1918, the CUP carried out a broad programme of
secularisation of schools, courts, and legislation. The government also
took its first steps towards the emancipation of women. In 1916, the
CUP government reduced the powers of the Sheikh ul-Islam by transfer-
ring jurisdiction over Muslim courts to the Ministry of Justice and the
control over Muslim colleges to the Ministry of Education.

In 1917, a new family code based on European principles was promul-

gated (Lapidus 2002: 498) in the form of a decree, but it remained in
240 MUSTAFA KOÇAK

force in the Ottoman Empire for only a year and a half, though else-
where its lifespan proved longer.6 Because all reforms in the Ottoman
Empire were decreed by the sultan, they had a substantial influence
and a modernising effect on other Muslim societies. Since the sultan
was also the Muslim Caliph, his edicts were accepted even if they de-
viated from orthodox Islamic practice.
The new family law also established unity in the court structure as
competences in the field of family law were removed from the
Religious Courts. In the drafting of the family code, the views of all
shari’a schools were taken into consideration, rather than just the
Hanafi School which was followed by the majority of Ottoman
Muslims. The code included separate provisions for Muslims,
Christians, and Jews. With the new code, marriage was accepted as a
contractual legal act that had to be registered by an authority appointed
by the state even though the contracting parties were left free to practise
whatever ritual or sacramental forms of marriage they wished (Berkes
1998: 417). Section 38 of the code was aimed at ending the practice of
polygamy, relying on a view held by the Hanbali School. According to
this section, a marriage contract contained a vow to the effect that the
man would not take a second wife and that if he were to do so the first
marriage would be deemed to have ended in divorce. As such, it effec-
tively introduced an indirect prohibition on ‘second’ (polygamous) mar-
riages (Aydın 1998: 314-318).
It was only with the 1926 Turkish Civil Code that unity was created
in this field, including for succession, which had until then been sub-
ject to shari’a rules. Even today there are separate shari’a succession
provisions that apply to individuals who died prior to 4 October 1926
and whose succession issues have not yet been settled.

6.2 The period from 1920 until 1965

The move toward a fully secular republic

The First World War ended in 1918, and on the 30th of October of that
same year, a Turkish delegation signed an armistice with the Allies on
behalf of the Ottoman Empire. Allied troops occupied various districts
in Istanbul, as well as a number of Turkish provinces, strategic roads,
and railroads. The various Arab lands that had belonged to the Ottoman
Empire were already controlled by the Allied forces, and their imminent
independence was assured to them. On 21 December 1918, the
Ottoman Sultan Mehmet VI dismissed Parliament. Under the protec-
tion of British, French, and American warships, the Greeks invaded
Izmir by sea on 15 May 1919, after which they pushed eastwards into
the interior (Lewis 1968: 239-242).
ISLAM AND NATIONAL LAW IN TURKEY 241

Four days after the Greek landing in İzmir, Mustafa Kemal Paşa,
Inspector-General of the Ninth Army, landed in Samsun, on the coast
of the Black Sea, with orders from Istanbul to supervise the disbanding
of the remaining Ottoman forces. Instead, he immediately began orga-
nising a nationalist movement and raising an army (Lewis 1968: 242-
243). On 23 July 1919, a congress of delegates from the eastern pro-
vinces assembled in Erzurum and on 4 September an even more im-
portant congress was held in Sivas. The main political goals of these na-
tionalists were preserving the territorial integrity and national indepen-
dence of Turkey. Meanwhile, under the authority of the sultan new
elections were held in December 1919.
In 1920, a power struggle took place between the nationalist move-
ment led by Mustafa Kemal (later to be known as Atatürk) and the fol-
lowers of the Sultan-Caliph’s forces. This conflict threatened to divide
the country: ‘It was unfortunate for Islam in Turkey that it came to be
intimately identified with the forces more concerned to retain their own
power, even by collaborating with Great Britain, the supporter of the
Greek invasion, than to save the country from partition’ (Lewis 1968:
234-274)7. The last Ottoman Parliament convened on 12 January 1920;
it adjourned its own sessions until 18 March, and on the 11th of April
the sultan dissolved it entirely. That same day, Sheikh ul-Islam
Durrizade Abdullah Efendi, ‘[…] issued a fetva [ fatwa] declaring that the
killing of rebels, on the orders of the Caliph, was a religious duty […]
(Lewis 1968: 252). Subsequently, the nationalist movement obtained a
counter-fatwa from the pro-nationalist müftü of Ankara aimed at miti-
gating the effects of the earlier fatwa.

Law reforms in the Turkish Republic

On 23 April 1920, the Turkish Grand National Assembly (Türkiye Büyük
Millet Meclisi, TBBM) held its opening session in Ankara. This occasion
marked the beginning of a new era for the Turkish state, namely the
era of the secular republic. The basis of the policy of the new Turkish
state became laicism, not irreligion: the new regime was not out to de-
stroy Islam, but rather aimed at abrogating its political authority. The
power of religion and its exponents in political, social, and cultural af-
fairs would be put to an end and a limit would be set to matters of wor-
ship and belief (Lewis 1968: 412). To set an example, the TBBM, in the
same year, enacted a Law against High Treason aimed at preventing the
misuse of religion for political ends.
The Kemalist period of governance began with the 1921 Constitution,
which stipulated that ultimate sovereignty belonged to the Turkish peo-
ple. On 1 November 1922 the national assembly abolished the sultanate
(Decree No. 308/1922, dated 1-2 November).8 In 1923, the Republican
242 MUSTAFA KOÇAK

People’s Party (Cumhuriyet Halk Partisi, CHP) was created, with

Mustafa Kemal as its first president. Shortly afterwards, he was elected
President of the Turkish state. In 1924 the abolition of the caliphate
was implemented (see Law No. 431/1924)9. The Sultan-Caliph was sent
into exile. ‘Sovereignty belongs to the nation’ became the new slogan of
the Republic. The abolition of the sultanate and the caliphate ended a
period where a religious institution sat at the apex of the state and was,
therefore, a significant step on the path to secularism. The concept of
loyalty to the nation replaced the concept of submission to God, and
thus secularised the people’s identity and sense of belonging. Now that
the concept of national sovereignty had been incorporated into the con-
stitution and had moreover been implemented in practice, a new era in
which the position of the bourgeois class was significantly strengthened
dawned on the Turkish Republic.
Another law, also promulgated in 1924 (Law (Kanun) No. 429/1924),
abolished the position and office of the Sheikh ul-Islam, as well as the
Ministry of Religious Foundations. The latter was replaced by a small
Office of Religious Affairs. Religious foundations (Evkaf Müdürlüğü)
came under the direct authority of the Prime Minister. A large number
of the religious scholars (ulama) were sent into retirement and the re-
maining religious clerics became minor civil servants. The entire sys-
tem of religious schools was also dismantled, the mektep (school) and
the medrese (the special high school) being incorporated into a unified
system of national education under the direction of the Ministry of
Education (Shaw & Shaw 1977: 384-385).
The influence of Islam on the legal system, however, did not disap-
pear entirely. According to Law No. 364/1923 (dated 29 October), which
amended the 1921 Constitution, Islam was still recognised as the state
religion. In addition, the age-old duty of the ruler to carry out the appli-
cation of shari’a laws was initially formally upheld by the TBBM.10 And,
when delivering the oath of office, the president and the members of
Parliament still accepted the religious formula, the vallahi (oath in the
name of Allah (God)). Despite these formalities and official recognition
of a continued role for Islam, in 1924 shari’a courts were abolished.
In 1925, representatives of the three separate non-Muslim commu-
nities (Jews, Armenians, and Greeks) declared to the government in
Ankara that they were prepared to give up their rights to their own com-
munity laws. This was a very significant development (Tanör 2002: 225-
226). In addition to this, the Sufi-orders were declared illegal and closed
on the grounds of Law No. 677/1925.11 Another example of the seculari-
sation of social life was the ban on the wearing of the fez and other reli-
gious garments. The wearing of the fez was prohibited through a sepa-
rate law (Law No. 671/1925), and regulations were inserted into the pe-
nal code making the wearing of religious attributes in public
ISLAM AND NATIONAL LAW IN TURKEY 243

punishable acts (Law No. 676/1925). Another law further specified that
certain garments, such as robes and türban of an imam or robes and
kippah of a rabbi, could not be worn (law of 13 December 1934). In addi-
tion, certain titles such as efendi, bey, and Paşa, could no longer be used,
and religious titles, such as hacı, hafiz, hoca, and molla, were also abol-
ished. And finally, calendar and national holidays were revised to re-
move any connotations of non-secular association.
The principle of separation of religion from politics was further af-
firmed in the Penal Code of 1926, which laid down penalties for those
‘who, by misuse of religion, religious sentiments, or things that are reli-
giously considered as holy, in any way incite the people to action preju-
dicial to the security of the state, or form associations for this purpose
[…] Political associations on the basis of religion or religious sentiments
may not be formed’ (Art. 163). The same code also prescribed punish-
ments for religious leaders and preachers, who, in the course of their
functions, bring the administration, the laws, or executive action into
discredit (Art. 241), incite disobedience (Art. 242), or who conduct reli-
gious celebrations and processions outside recognised places of worship
(Art. 529).
On 4 October 1926, a new civil code, which also incorporated family
law based on the Swiss civil code, was enacted. This civil code replaced
the Mecelle, which was essentially based on the shari’a. The new law
abolished polygamy, made the sexes substantially equal in rights to di-
vorce, and required that divorce be subject to court rulings on specified
grounds rather than acting as a male prerogative. The regulation of
births, upbringing and custody of children, cultural education, mar-
riage, death, and inheritance were no longer the domain of the ulama
(Örücü 1992: 51-52; Tanör 2002: 276): a marriage contract now had to
be concluded before an official marriage registrar; parents were respon-
sible for the religious education of children; and upon reaching major-
ity one had the freedom to choose one’s religion.
The influence of European law increased, as witnessed by the founda-
tions of many laws. The 1926 Law of Obligations was for example based
upon the Swiss Code, and the Turkish Commercial Law was predomi-
nantly German, but eclectically also based upon the French, Belgium,
and Swiss Commercial Codes. The Turkish Code of Civil Procedure was
adopted from the canton of Neuchatel (Örücü 1992: 52).
The date 14 April 1928 is a significant moment in the process of
Turkish laicism. Section 2 of the 1924 Constitution, which said that
‘[t]he religion of the Turkish State is Islam’ and Section 16, citing ‘to ap-
ply the Shari’a Law’ among the duties of the Parliament, were removed
from the Constitution, and the oaths in parliament were secularised.
The reason given for this was that in the contemporary civilised world
it is generally accepted that the most progressive and developed type of
244 MUSTAFA KOÇAK

state enabling the realisation of the national sovereignty is a laic and de-
mocratic republic. Also in 1928, a new Latin alphabet was introduced to
replace Arabic. The next measure was the purification of the Turkish
language, which was achieved through the removal of all Arabic and
Persian influences. And, in 1929, both Arabic and Persian were elimi-
nated from the school curricula.
This was a firm departure from the Arab culture and its religious
source. Religious teaching was removed from the curriculum of urban
primary schools in 1930 and from that of rural schools in 1939. In addi-
tion, foreign school programmes were no longer allowed to contain any
religious elements. The Constitution guaranteed women the right to
equality in education and employment, and in 1934 they were accorded
the right to vote in national elections. In 1935, the first female deputies
were elected to the Turkish Parliament.
In 1929, a new Turkish Penal Code was enacted based on the
German Penal Code, and in the same year the new Maritime
Commercial Code, also inspired by a German code, was accepted. The
Code of Bankruptcy was adopted from the Swiss Federal Code. In 1935,
all Turks were required to take surnames in the Western fashion. In the
1940s, ‘Village Institutes’ (Köy Enstitüleri) carried the laicist world view
to rural areas.
While the Kemalist reforms did indeed restrict the public role of reli-
gion, they did not try to change the content of religion except for the
call to prayer (ezan), which as from January 1932 sounded from the
minarets in Turkish. A purely Turkish version of the call was prepared
by the Linguistics Society and published by the Office of Religious
Affairs (Lewis 1968: 416; Tanör 2002: 276-277). Some reforms, how-
ever, did have a clear role in constraining the freedom of religion.
Examples of this include: the Law of 1935, which classified mosques
and mescit (masjids) and allowed some of them to be used for non-reli-
gious purposes12; restrictive regulations on pilgrimages; and the disso-
lution of religious Sufi associations (tarikat, pl. tariqas), the impounding
of their assets, the closing of their convents and sanctuaries, and prohi-
bition on their prayer meetings and ceremonies. At times, Article 163
of the Penal Code was used in order to ban and disperse religious meet-
ings (Tanör 2002: 276-277).
Thus, in the 1920s and 1930s Islam was ‘de-established’ and de-
prived of its role in public life. The ordinary symbols of Turkish attach-
ment to traditional culture were replaced by new legal, linguistic, and
other signs of modern identity (Lapidus 2002: 502-503). Nonetheless,
Islam remained ‘deeply rooted in the minds and hearts of the people’
(Rosenthal 1965: 61).
On 10 November 1938, Mustafa Kemal Atatürk, the founder of mod-
ern Turkey, died. İsmet İnönü was elected as the second President of
ISLAM AND NATIONAL LAW IN TURKEY 245

the Turkish Republic. From 1938 to 1945, the Republican People’s Party
(CHP) was the only political party. It acted in a rather totalitarian man-
ner and maintained its strict laicist policies towards religion. There was
no democratic opposition. However, the CHP-run government per-
mitted the reintroduction of military imams into the army as early as
1941 (Ahmad 1977: 364). In 1949, religious education was reintroduced
into schools. This consisted of two hours of instruction on Saturday
afternoons, but was restricted to those children whose parents had ex-
plicitly requested such education. In this way, the state retained control
over religion and religious institutions.

Transition to a multi-party regime

In 1945, Turkey introduced a multi-party regime. The Democratic Party
was established from within the CHP in 1946. The new democratic dis-
pensation gave much more freedom of expression to various groups, in-
cluding religious leaders. At this time, the competition for votes forced
the CHP and the opposition parties to reconsider their policies concern-
ing Islam. The first thing the Democratic Party did after coming to
power (1950-1960) was to amend the Penal Code (§ 526), which from
1932 onwards had forbidden the call to prayer in any language other
than Turkish. On 5 July, the ban on religious radio programmes was
abolished, and radio stations immediately resumed broadcasting read-
ings from the Qur’an. In October 1950, religious lessons in schools be-
came compulsory for the fourth and fifth grades of primary school, un-
less parents indicated that they did not desire such education for their
children. For the other grades and levels of schools, religious instruc-
tion remained optional (Lewis 1968: 418; Ahmad 1977: 365).
In 1951, however, a series of court cases were brought against Islamic
reactionaries and against Islamic publications. On 25 July 1951, a bill on
Atatürk came into force, giving the government powers to deal with
those who challenged the Atatürk reforms. In July 1953, the Law to
Protect the Freedom of Conscience was passed to prevent religion from
being used for political purposes (Ahmad 1977: 369). This law corre-
sponds to the provisions of the Penal Code of 1926 whereby it was con-
sidered a crime to ‘establish, organise or administer associations with
the aim of adapting the fundamentals of state order to religious rules
and beliefs, contrary to secularism, or to affiliate with or encourage
others to affiliate with these type of associations’ (Art.163). Both laws
aimed to protect secularism in the country and the Law to Protect the
Freedom of Conscience reinforced Article 163 of the Penal Code. After
1952, a number of political parties were banned. The authorities dis-
solved the Islamic Democratic Party (IDP) and subjected the party’s
founders to criminal investigation (Tunaya 1995: 742-744). In 1953, the
246 MUSTAFA KOÇAK

Nation Party was temporarily closed on grounds that it was engaging in

subversive activities under the cloak of religion; on 27 January 1954, the
party was dissolved by court order.

The first military coup and a new constitution

In 1960, the Democratic Party government was overthrown by a mili-
tary coup. The army, which took control, represented the Westernised
elite and was aligned to bureaucrats and students, all of whom de-
fended the laic Kemalist policies. Their opponents were largely rural,
small-town business owners and Islamic interest groups. A major rea-
son for the coup was the dire economic situation. There was no ques-
tion of an Islamic resurgence threatening the reforms. In fact,
Kemalism had now brought about a generation of socio-economic
changes that had positively influenced a significant minority in Turkey
(Ahmad 1977: 373).
The army promulgated a new constitution, a parliamentary regime,
and a new economic policy (Lapidus 2002: 506). The Constitution of
1961, which was adopted by the Constituent Assembly, confirmed the
laic character of the democratic, social Republic. This constitution for-
bade the use of religion for political purposes13, left all decisions regard-
ing the religious education of children to parental discretion14, and left
the Office of Religious Affairs intact. In addition, the Constitution for-
mulated a special article designed to ‘[s]afeguard […] the Reform Laws
which aim at raising Turkish society to the level of contemporary civili-
zation and at safeguarding the secular character of the Republic and
which were in effect on the date this constitution was adopted by popu-
lar vote […]’ (Art. 153). The laws in question were then enumerated.
Article 154 safeguarded the Office of Religious Affairs, stating that that
office ‘incorporated in the general administration, discharges the func-
tion prescribed by a special law’.

6.3 The period from 1965 until 1985

Grappling with the division between religious identity and
political influence

In the period between 1965 and 1985, Turkey maintained its secular char-
acter and strengthened its image as a moderate alternative to Islamising
countries such as Iran, Pakistan, and Sudan. Nonetheless, in Turkey,
emotions frequently ran high when religious matters were at stake.
In the 1965 elections, nearly all Turkish political parties exploited reli-
gion. The Justice Party (JP), established in 1961, won the elections. Led
by Süleyman Demirel, the JP used the slogan ‘we are right of centre
ISLAM AND NATIONAL LAW IN TURKEY 247

and on the path to God’. The CHP, as usual more ambivalent about ex-
ploiting Islam, used the old tactics of denouncing the JP and Demirel,
for example with the laic retort ‘We elected him as a political leader, not
as the imam of a mosque’ (Ahmad 1977: 378). The JP formed the gov-
ernment and pledged that graduates of the Islamic İmam Hatip schools,
secondary schools for the training of Islamic religious personnel in
Turkey, would be admitted to universities. During this political period, a
number of İmam Hatip schools were opened in nearly every Turkish
province.

The effects of the 1968 student revolution in Paris were also noticeable
on Turkish campuses. The first student boycott took place in April 1968
at the Faculty of Divinity at the University of Ankara. This protest was
prompted by an incident in which a female student had insisted on
wearing her headscarf in class.
On the political front, several revolutionary developments also took
place during this turbulent period. In 1969, the National Order Party
(Milli Nizam Partisi, MNP), with an Islamic inclination, was established
under the leadership of Necmettin Erbakan. In 1971, the army tempora-
rily took control of the state, but quickly restored a civilian administra-
tion. Nonetheless, the Constitutional Court closed down Erbakan’s
MNP in 1972 for having used religion for political gain (Shankland
1999: 87-131).
In 1973, the new Islamic National Salvation Party (Milli Selamet
Partisi, MSP) was established; it formed a coalition government under
CHP leader Bülent Ecevit. However, the tensions between leftist and
rightist parties increased dramatically in the 1970s, leading to violence
and bloody clashes that claimed many lives.

The second military coup and the Constitution of 1982

In 1980, yet another military coup took place. The National Security
Council banned all parties, outlawed strikes, and abrogated the legisla-
ture by forbidding its members from participating in politics for the
next ten years. The Consultative Council, comprised of civilians, and
the National Security Council together formed the Constitutive Council.
This council prepared a new constitution as well as a law regulating the
referendum on the Constitution. The Constitution was adopted after
the 7 November 1982 referendum yielded a 91.37 per cent yes-vote.15
Subsequently the 1983 general elections were held in November, and a
new democratic period began with the meeting of the new Parliament
(Özbudun 1993: 32-33).
In 1983, the Islamic Welfare Party (Refah Partisi, RP) was founded,
consisting almost entirely of former members of the MSP (Turan 1994:
248 MUSTAFA KOÇAK

31-55). Initially, the party was only able to participate in local govern-
ment elections; the military authorities of the period prohibited the RP
from participating in general elections..
In December 1982, the Higher Education Council issued a regulation
banning the wearing of head covers (türban). In a 1984 case, the
Council of State upheld this prohibition and declared that ‘the türban is
no longer an innocent tradition, but has become a symbol of a world
view against the freedom of women and against the fundamental prin-
ciples of the Republic’.16
Before we continue with the events of the 1985 to the present period,
we should say a few words about the conflicts inherent in the 1982
Constitution. Three main conflicts can be identified in the Constitution.
The first paragraphs of Article 24, which concern freedom of religion
and conscience, state that:

Everyone has the right to freedom of conscience, religious belief

and conviction.

Acts of worship, religious services, and ceremonies shall be con-

ducted freely, provided that they do not violate the provisions of
Article 14.

No one shall be compelled to worship, or to participate in reli-

gious ceremonies and rites, to reveal religious beliefs and convic-
tions, or be blamed or accused because of his religious beliefs
and convictions.

First, in distinction from the 1961 Constitution, the 1982 Constitution

places education and instruction of religion and ethics under state
supervision and control. Article 24 states further that instruction in reli-
gious culture and moral education shall be compulsory in the curricula
of primary and secondary schools. Since obligatory religious lessons
were taught according to the Sunni interpretation of Islam, they came
under criticism from other religious groups, especially from the Alevis.
The subject was taken to court, as will be explained in the following sec-
tion, but could not be challenged at the European Human Rights Court
since at that time Turkey had not yet accepted the jurisdiction of this
court.
The second conflict is stated in Article 136 of the 1982 Constitution.
This article ensured the continuity of the Office of Religious Affairs as
a part of the general administration, similar to the 1961 Constitution. It
is generally accepted in Western democracies that the separation of reli-
gion and state affairs is essential in a secular state. Yet, Article 2 of the
Constitution firstly identifies the Turkish Republic as a secular state,
ISLAM AND NATIONAL LAW IN TURKEY 249

whilst simultaneously creating an agency to manage religious affairs

within the general administration by way of Article 136. Further, Article
89 of the Political Parties Act forbids political parties to aim to abolish
or to change the status of the Office of Religious Affairs as an agency of
the general administration. Indeed, a number of parties have been
closed on grounds that their party programmes were contrary to Article
89 (see 5.4 below).
Thirdly, contrary to Article 24 of the 1982 Constitution, which states
that ‘no one shall be compelled to reveal religious beliefs and convic-
tions’, Article 7 of the Civil Registration Services Act (Law No. 5480/
2006) provided that the religion to which people belonged had to be
shown in the state register and on identity cards. This issue has been
challenged on grounds that it is contrary to secularism, as will also be
explained in the following section.

6.4 The period from 1985 until the present

Defending the laic order – The battle against visible signs of
Islamism

The period starting with 1985 did not open a new leaf for the state-reli-
gion relations in Turkey.17. Thus, the events described and analysed in
this section should be seen as a natural extension of the previous sec-
tion. Within the liberal environment introduced by the Constitution of
1961 different thoughts and ideologies found a chance to flourish and
to become more organised. During the period of 1960-1980 a young
generation had begun to develop under the influence of Marxism, while
on the other hand there had been clear signs of development of a group
with growing Islamic inclinations. As a result, ideological conflicts and
violence followed.
Thus, after the military coup of 1980, the military government was
careful to create an environment in which ideological conflicts could
not exist, limiting freedoms and eliminating differences. The new gen-
eration would, according to their plan, be close to the Turkish-Islam
synthesis, being Turkish, Sunni, and secular. Yet, under this authoritar-
ian and nationalist constitutional order, movements demanding the ex-
pansion of liberal freedoms in the field of religion and conscience,
especially from Muslims of Sunni and Alevi sects, became increasingly
organised and vocal from 1985 onwards.
Turkey’s acceptance of the jurisdiction of the European Court of
Human Rights in 1987 paved the way for many applications for review
of the conflicts between the constitution and other regulations outlined
above. As will become evident in the discussion below, the issue of reli-
gious dress was particularly symbolic and vital in the government’s
250 MUSTAFA KOÇAK

resistance to perceived threats from non-secular groups and their ideas

of political and formal social expression.

Legislation banning the Turban

In 1987, yet another legislative prohibition on the wearing of head cov-
ers was upheld by the Council of State. Two years later, in 1989, a law
from 198818 removing the restrictions was annulled by the
Constitutional Court in a decision holding as follows:

A legal regulation cannot take into consideration religious rules,

religious beliefs and religious requirements; the regulation re-
lated to covering the neck and hair because of religious beliefs is
contrary to the principles in the Preamble of the Constitution
and specifically to secularism.19

In 1992, the government removed a number of religiously-grounded ar-

ticles from the Penal Code, in order to prohibit the exploitation of reli-
gious feelings and propaganda for a state based on religion. Shortly
afterwards, in 1993, tensions mounted when several intellectuals were
assassinated and allegations that their murders had been carried out by
terrorist organisations with Islamic connections surfaced. It was also
claimed that there was foreign involvement in these assassinations
(Kongar 1998: 225, 261). Around this same time, a hotel in Sivas where
33 writers and artists were staying was burnt down; thirty-seven people
were killed, including locals. Various interpretations of this incident see
it as a Sunni-Alevi conflict, a clash of secular and religious forces, the
use of religion for political ends, or a battle for power between the two
camps.
In the local elections of 27 March 1994, the Islamic Welfare Party
(Refah Partisi) won more than 19 per cent of the votes. The party
gained the mayorships in Istanbul and Ankara; Recep Tayyip Erdoğan
became mayor of Istanbul. In March 1995, an Istanbul coffee shop
located in a neighbourhood primarily popular with Alevis was at-
tacked, leaving two people dead and fifteen wounded. The military
had to be called upon to ease the popular tension following the at-
tack. In the elections of 24 December 1995 the RP even became the
biggest party, gaining 21.4 per cent of the votes. Its chairman,
Necmettin Erbakan, became Prime Minister of the coalition
government.
ISLAM AND NATIONAL LAW IN TURKEY 251

Banning parties in the name of democracy

In 1996 and 1997, Refah politicians gave the impression on several oc-
casions that they no longer supported the secular approach advocated
by Kemalism.20 Consequently, in 1997 the National Security Council
acted against the anti-laic activities of the party and forced the RP to
give up their participation in the coalition government. The military
forces briefed the public prosecutor, the judicial authorities, academics,
and the press on the situation, sending the clear message that religious
bigotry had become the prime factor threatening national security and
that it would no longer be tolerated. A special unit was set up in the
General Staff to monitor Islamic activities. The Public Prosecutor of the
Republic took further steps, requesting the Constitutional Court to per-
manently dissolve the RP on the basis that it had become a centre for
anti-laic activities. Faced with strong pressure from public opinion,
Erbakan handed in his resignation from the chairmanship of the RP
and his post as Prime Minister to the President in June 1997.
In January 1998, the Constitutional Court dissolved the RP.
However, by February, a new party – the Virtue Party (Fazilet Partisi,
FP) – had already been created; all RP mayors joined this new party. In
April, the Diyarbakir State Security Court decided that Erdoğan, who
was still serving as mayor of Greater İstanbul, had ‘sown seeds of
hatred among the people’ in a speech in Siirt in late 1997. For this of-
fence, the court sentenced him to ten months in prison on the basis of
Article 312 of the Penal Code. In addition, he was prohibited henceforth
from taking public office and participating in elections.
At this time, some preventive measures were taken to reduce the
number of graduates of İmam-Hatip schools working in the public sec-
tor. Obligatory state education was extended from five to eight years.
The university entrance system was also changed so as not to allow
graduates from vocational schools to attend any other faculty depart-
ment except those in their own fields. Many army officers who had
come from İmam Hatip schools of higher education or who had con-
nections with religious Sufi organisations were dismissed.
The Higher Education Council imposed a new dress code, banning
the wearing of head covers and of beards on university campuses. As a
result of the legal obligation to have photographs without headcovers on
school documents, hundreds of female students could not attend
school, which led to protests in October 1998. In May 1998, the presi-
dent of the Islamic business association ‘MÜSİAD’ was tried by the
Ankara State Security Court because of a speech he made in October
1997, in which he too had allegedly ‘sowed seeds of hatred among the
people’. In 1999, he was sentenced to sixteen months imprisonment,
but the sentence was suspended on the condition of non-recidivism.
252 MUSTAFA KOÇAK

Also, in 1998 the building and running of mosques was placed under
the supervision of a state organisation. The aim of this was to prevent
Islamic communities from having their own mosques and also to re-
duce their sphere of influence (Kramer 2001: 121-122). At the same
time, the High Council for Radio and Television warned Islamic radio
and television stations against exploiting religious sentiments. Technical
measures to be used as possible measures against the stations if they
did not abide by the rules were outlined and discussed. It has been said
that these developments were part of a comprehensive campaign begun
by the General Staff against ‘the spread of Islamic fundamentalism’
(Kramer 2001: 122).
In the 1999 elections, the Virtue Party’s votes were reduced to 15.41
per cent. A few weeks before the election, the Public Prosecutor had re-
quested the Constitutional Court to ban the party completely. Another
law suit related to the dissolution of this party was heard after a female
Member of Parliament of the party had taken her oath of office while
wearing a headscarf, causing turmoil among Members of Parliament.
The Court subsequently dissolved the party, in whose place the Justice
and Development Party (Adalet ve Kalkınma Partisi, AK Party) was
swiftly created.

The period of the Justice and Development Party and the decision of the
European Court of Human Rights concerning the Turban
The elections of 2002 brought the AK Party into power. They emerged
the outright winner in the elections, despite having garnered only 34
per cent of the votes. In the local elections of 2004, the party increased
in popularity, winning 44 per cent of the vote. Despite its Islamic roots,
the party projects the image of a centre-right conservative party that
aims for economic development and respects the basic principles of a
secular constitutional order. The AK Party has also supported Turkey’s
efforts towards attaining full membership status in the European
Union, and as such considerable progress has been made in the area of
human rights, including the rights of suspects and prisoners.
The ‘türban question’, a chronic problem in Turkey, reached the
European Court of Human Rights (EctHR) in 1998. The applicant, a fe-
male student named Leyla Şahin, alleged that a ban on wearing the
Islamic headscarf (türban) in higher-education institutions violated her
rights and freedoms under Articles 8, 9, 10 and 14 of the Convention
and Article 2 of Protocol No. 1. (Case of Leyla Şahin vs. Turkey,
Application No. 44774/98). The judgment of 29 June 2004 referred to
the historical and sociological circumstances in Turkey, and appeared to
be influenced by the previous Refah case:
ISLAM AND NATIONAL LAW IN TURKEY 253

The Court does not lose sight of the fact that there are extremist
political movements in Turkey which seek to impose on society
as a whole their religious symbols and conception of a society
founded on religious precepts (see para.s 32, 33) […] Each
Contracting State may, in accordance with the Convention provi-
sions, take a stance against such political movements, based on
its historical experience (Refah Partisi and Others, cited above,
§ 124). The regulations concerned have to be viewed in that con-
text and constitute a measure intended to achieve the legitimate
aims referred to above and thereby to preserve pluralism in the
university (para. 109).

The Court went on to say:

A margin of appreciation is particularly appropriate when it

comes to the regulation by the Contracting States of the wearing
of religious symbols in teaching institutions, since rules on the
subject vary from one country to another depending on national
traditions […] and there is no uniform European conception of
the requirements of ‘the protection of the rights of others’ and
of ‘public order’ […]. It should be noted in this connection that
the very nature of education makes regulatory powers necessary
(para. 102).

In so holding, the court granted Turkey the discretion to preserve the

laic life-style, women’s rights and public order in the face of religious
movements seen to be attempting to impose their world-views.
This judgment was assessed differently by different sectors of the
Turkish community. The general consensus was that this was more a
political decision than a legal one. For instance, Nuray Mert of the
Radikal newspaper, critical of the judgment, wrote: ‘European democra-
cies have not yet gone beyond their preconceptions and assumptions
about Islam, Moslems and their social demands. Therefore, the deci-
sions reached reflect these views.’21 Another journalist, Gündüz Aktan,
also of Radikal, drew attention to the inconsistencies in the judgment:

The inconsistencies can be explained thus: Even though those

that wear the türban are in the minority, in a country where
there are extreme trends, they can become the majority, in
which case equality will be violated for those who do not wear
the türban. Those who now benefit from Article 9 by following
their beliefs in a pluralist society, except being able to wear the
türban, may not respect this principle then. Authorities must re-
main ‘neutral’ regarding religious beliefs. Allowing the wearing
254 MUSTAFA KOÇAK

of the türban would create a privilege for those who wear it and
constitute a discrimination against those who do not.22

From time to time, the Head of the Office of Religious Affairs

(Diyanet), Ali Bardakoğlu, has taken up the discussion on the ‘türban
question,’ once expressing the view that ‘the wearing of the headscarf
has never been a condition of either being a Moslem or being consid-
ered one.’23
A recent development is a draft bill on the organisation of the
Diyanet (Diyanet İşleri Başkanlığı Teşkilat Kanunu Tasarısı) prepared by
the Council of Ministers.24 According to this bill, the usage and admin-
istration of all mosques in Turkey will belong to the Diyanet. At present,
of approximately 80,000 mosques in Turkey, only 4,000 belong to the
Diyanet, the rest belong to associations (7,076), private persons (3,379),
and private foundations (936). The Diyanet states that they only hear of
a newly constructed mosque when asked to allocate religious posts and
that this situation leads to a gap in supervision.25 If the draft becomes
law, all new mosques and their annexes, such as gardens, courtyards,
lodgings for the imams, will be transferred to the Diyanet.26 The aim of
this significant development is to have the administration and control
by the state in all areas pertaining to mosques and to prevent their use
for purposes other than for religious services.

Regime discussions and the search for a new constitution

In May 2007, the AK Party proceeded to elect the President of the
Republic by insistence rather than by reaching consensus, which led to
a strong reaction in some quarters of the society. The Constitutional
Court annulled the first round of the elections for lack of the necessary
quorum of two-thirds of the full membership of the Assembly. On the
evening of the same day that the opposition party took the elections to
the Court for annulment, the Chief of General Staff drew attention on
the army web page to the fact that attempts by those who want to erode
the foundations of the Republic have become denser and that the reac-
tionary sectors of society have taken courage from recent develop-
ments.27 This has been interpreted in the media as a ‘warning’.28
The army accused the government of tolerating radical Islam and
vowed to defend laicism. It must be remembered that Turkey’s army
has toppled three governments since 1960, and analysts said there were
fears that it could intervene again. In 1997, it had been army pressure
that led to the ousting of Turkey’s first Islamist Prime Minister
Necmettin Erbakan.29
In demonstrations throughout April and May of 2007 in Ankara,
İstanbul, İzmir and Samsun, the message was ‘the laic order of Turkey
ISLAM AND NATIONAL LAW IN TURKEY 255

is in danger’. Many have been complaining that religious sentiments

were becoming more prominent in daily life, children were being har-
assed, alcoholic drinks had become expensive, religion had become a
criterion of promotions in public sector jobs, and many areas of
İstanbul looked more and more like the Middle East, with girls and
boys sitting separately in many places and an increasing number of cov-
ered women.
However, the surveys carried out in 1999 and 2006 by the Turkish
Economic and Social Studies Foundation (TESEV) showed a different
analysis of the picture than the generally accepted views or preconcep-
tions in Turkish society. In November 2006, the Foundation published
the results of their survey Değişen Türkiye’de Din, Toplum ve Siyaset
(‘Religion, society, and politics in a changing Turkey’). The aim of the
survey was to provide a rational basis for discussion as the foundation
believed that misinformation and manipulation of the public opinion
were causing conflict between various sectors of society in the public
sphere. The report (hereinafter ‘TESEV Report’) is the first serious
study conducted on the much debated Islam factor and its threat to the
secular order of the state and deserves to be examined in more detail in
order to show the changes in the sociological nature of the Turkish
society.
The respondents of the survey identified the five most important pro-
blems in Turkey as follows: (1) unemployment (38.2%); (2) terrorism/
national security/Southeast problem/the Kurdish problem (13.8%); (3)
the high cost of living/inflation (12.1%); (4) education (10.2%); and (5)
economic instability (6.5%). Interestingly, only 3.7 per cent of those
polled saw the türban issue as an important problem (TESEV Report:
23, 45). Contrary to general belief, findings revealed that there had been
a decrease in the number of ‘covered’ women in 2006, as compared to
1999. The percentage of women who said they did not ‘cover up’ in
public was 27.3 per cent in 1999, versus 36.5 per cent in 2006. The
percentage of those wearing a headscarf, stole or head-handkerchief (ye-
meni) went from 53.4 per cent in 1999 to 48.8 per cent in 2006; the
percentage of those wearing the over-garment (çarşaf) was 3.4 per cent
in 1999, but only 1.1 per cent in 2006; and the percentage of women
wearing the türban went down from 15.7 per cent in 1999 to 11.4 per
cent in 2006. Thus, the conclusions of the survey indicate that contrary
to the claims of both the ‘laic’ and the ‘Islamist’ sectors, the ‘türban
question’ is not on the agenda of Turkish people (TESEV Report: 23).
Yet, the survey also simultaneously indicated an overall increase in
pietism in Turkey. The percentage of those who answered the question
about how they would define themselves with ‘Turkish’ remained fairly
constant at 19-20 per cent in the intervening seven years. But the per-
centage of those who answered ‘Moslem’ went from 36 per cent in
256 MUSTAFA KOÇAK

1999 up to 45 per cent in 2006, while the percentage of those who de-
fined themselves as ‘a citizen of the Turkish Republic’ fell from 34 per
cent to 30 per cent. However, while 73 per cent of those surveyed said
that laicism was not under threat, when asked whether they would like
to see a shari’a state, 21 per cent in 1999 and 8.9 per cent in 2006 an-
swered in the positive (ibid: 30).

According to the journalist-author Taha Akyol:

If further questions had been put to those who answered in the

positive in order to find out what people meant by the word sha-
ri’a which they regarded as sacred, this percentage would have
fallen to 7-8% even in 1999, and in 2006 this percentage would
have been 4-5%.30

Also, according to the survey, as the social status of the individual

moved higher, religious tendencies were replaced by liberalism and laic
law was preferred (TESEV Report: 39-43). Akyol said that in the end,
difficulties in this area would be overcome if Turkey could sustain stabi-
lity in democracy, market economy, urbanisation and education (ibid).
Results also highlighted that the vast majority of the Turkish popula-
tion did not see a connection between terrorism and Islam. Moreover,
respondents expressed their belief that even if a country were to be oc-
cupied, its people should not resort to terrorism and generally rejected
any support for such action against a civilian population (TESEV
Report: 30).
On 22 July 2007, an early general election took place. Immediately
after the elections, in spite of the results indicated in the TESEV Report
above, discussions about the secular regime and the constitution surged
anew. The AK Party asked Professor Özbudun to head a commission to
prepare a draft of a new constitution. However, commission delibera-
tions on the feasibility of lifting the ban on head covering, which was
preventing female students from attending university, were perceived as
damaging to the secular nature of the state.
The first signs of a new legal regulation relating to the türban were
evident in Prime Minister Recep Tayyip Erdoğan’s statement at a press
conference on 14 January 2008 on the occasion of an official visit to
Spain. In his statement Erdoğan expressed that even if it is used as a
political symbol, it is not a crime to wear a headscarf and that symbols
cannot be banned. He further stated that it was sad that while students
in Europe and America could freely attend university wearing the
türban that in the so-called age of freedom such a problem should exist
in a country where 99 per cent of the population is Muslim. He said
that this problem would be resolved in a short time.
ISLAM AND NATIONAL LAW IN TURKEY 257

As a result of this speech, the ensuing debate on the türban occupied

Turkey’s agenda, causing lawyers, a number of organisations such as
the main opposition party, the Court of Cassation, the Council of State,
universities, and so forth to make consecutive statements on the matter.
While some legal experts argued that – being contrary to the decisions
of the Constitutional Court, the Council of State, and the European
Court of Human Rights – Erdoğan’s consideration of the türban as a
political symbol was unconstitutional, others asserted that it should be
considered an expression of freedom of speech.
Without waiting until the draft constitution was presented to the par-
liament, in 2008 a bill was prepared reforming Articles 10 and 42 of
the current Constitution (1982) to allow female students to attend uni-
versity while wearing a scarf or other head covering. AK Party in coali-
tion with MHP was able to pass the bill, thus amending the constitu-
tion. The opposition parties, namely deputies from the CHP and DSP,
brought these changes to the Constitutional Court on the basis that
such changes were unconstitutional because they damaged the secular
foundation of the state. The Constitutional Court annulled the constitu-
tional changes on the grounds that it was contrary to the irrevocable
provisions of the constitution. According to the Court,

Covering for the sake of religious belief and the freedom to wear
clothing symbolising one’s accepted religion may cause conflict
in society by the use of pressure on individuals whom they un-
derstand do not share the same belief as themselves. This may
induce them to perform preventive and harmful acts against
one another’s freedom of religion and belief and even to exclude
those who are not of their own beliefs.31

While the Court deliberations continued, on 14 March 2008 the Chief

Prosecutor filed a brief before the Constitutional Court requesting the
dissolution of AK Party on the basis of its activities, deemed to consti-
tute ‘anti-secularism.’ The Chief Prosecutor claimed that the AK Party
has become the focus of acts contrary to secularism and also requested
that 71 persons be prohibited from politics, among these being
President Gül and Prime Minister Erdoğan.
The case concerning AK Party’s closure was decided on 30 July
2008. The qualified majority needed for the closure could not be
achieved, so the request for closure was denied by the Constitutional
Court with six acceptances to five rejections. The court held that the evi-
dence did not prove that the aim of the defendant political party was to
eliminate the democratic and secular order of the state or to destroy the
general principles of the constitutional order by intolerance or by use of
force. The court further found that the defendant party had not used
258 MUSTAFA KOÇAK

the political power available to it for the purpose of inciting violence

and that as such the actions of the AK Party were not seen to be serious
enough for the dissolution of the party. The court concluded, however,
that the actions in question did violate the principle of a democratic and
secular republic and that the aggravating nature of these actions war-
ranted penalisation of the defendant party in the form of a reduction of
one-half the amount of state financial assistance received by AK Party.

6.5 Constitutional law

Turkey is a constitutional parliamentary democracy with a wide range of

human rights enshrined in the present Constitution of 1982. The first
three articles formulate a number of fundamental principles described
as ‘immutable provisions’ in Article 4. Articles 1, 2, and 3 stipulate that
the form of government is a republic and outline the constituent char-
acteristics of the system which include it being a democratic, laic, con-
stitutional state that respects human rights. The Constitution further
sets forth that the state is an indivisible whole. The republic remains
loyal to Atatürk’s nationalism and the fundamental tenets set forth in
the preamble, which reads in part as follows:

In line with the concept of nationalism and the reforms and

principles introduced by the founder of the Republic of Turkey,
Atatürk […] The understanding of absolute supremacy of the will
of the nation […] the recognition that […] reforms and modern-
ism of Atatürk and that, as required by the principle of laicism,
there shall be no interference whatsoever by sacred religious
feelings in state affairs and politics […] thus commanding re-
spect for, and absolute loyalty to its letter and spirit.

In addition to these limitations, Article 174 of the Constitution affords

protection to certain laws, namely the Laws of the Radical Reform,
which were passed at the time of the formation of the republic, and
which still are regarded as a sine qua non of modernisation and seculari-
sation – the major aims of the republic. Örücü points out that:

[t]he aim was to import “modernity” on a major scale. Important

consequences arising out of the above are the strict control on
political parties and the use of freedoms such as those of expres-
sion, the press, association and religion, and a self-referential le-
gal system (Örücü 2003: 133).
ISLAM AND NATIONAL LAW IN TURKEY 259

The Office of Religious Affairs (Diyanet)

The Office of Religious Affairs was created in the Republican period
and was given a structure that complied with the secular structure of
the state; it was given the mandate to carry out religious affairs pertain-
ing to faith, worship, and moral principles; to inform society on reli-
gion; and to administer places of worship.32 As indicated above, the
Constitution of 1982 places the Office of Religious Affairs within the
administrative structure of the state. Article 136 reads as follows:

The Office of Religious Affairs, which is within the general ad-

ministration, shall exercise its duties prescribed in its particular
law, in accordance with the principles of secularism, removed
from all political views and ideas, and aiming at national solidar-
ity and integrity.

In terms of its structure, the Office of Religious Affairs is a public insti-

tution placed within the state organisation. This fact has been seen as a
contradiction to the secular nature of the state. It can be observed that
within this context, there are three views regarding the functioning of
the Diyanet. The first view is that the Diyanet should be totally abolished
and that religious matters should be dealt with solely by the religious
communities. The second view is that the Diyanet should not provide
services for different religious communities, that it should be above re-
ligious conflicts, and that it should only serve to protect religion at
large. The third is the majority view, which protects the present position
of the Diyanet. This reflects the official position. The cases that signify
these views are discussed in the following subsection.

Banning of parties
Constitutional Court cases concerning the banning of parties on the
grounds of preserving either the secular nature of the state or the posi-
tion of the Diyanet within the central government can be seen through-
out the 1980s to the present day, the most recent case being the above-
mentioned dissolution of AK Party in 2008.
The Law on Political Parties sanctions in its Article 89 advocating
changes in the position of the Office of Religious Affairs within the fra-
mework of the Constitution with dissolution of the political parties in-
volved. The decisions of the Turkish Constitutional Court have drawn
on this regulation a number of times. For example, the Freedom and
Democracy Party (Özgürlük ve Demokrasi Partisi, ÖZDEP) stated in its
party programme that the state should not interfere in religious affairs;
this should remain within the realm of the religious communities. On
260 MUSTAFA KOÇAK

this point, the party pledged to grant national and religious minorities
the means to develop their communities, language, culture, traditions,
philosophy, and religious convictions and practices in an atmosphere of
democracy and freedom. The Constitutional Court decided, on the basis
of this, to dissolve the party for its promotion of ideas contrary to
Section 89 of the Law on Political Parties,33 among other reasons:
‘ÖZDEP interpreted secularism in its modern shape and defined secu-
larism as the separation of state and religion. ÖZDEP believed that the
Diyanet (Office of Religious Affairs) should not be situated in the gener-
al administration of the state.’34 The Court said that advocating the abo-
lition of the Office of Religion Affairs amounted to undermining the
principle of secularism.35
The second political party brought before the Constitutional Court
was the Democratic Peace Movement Party (Demokratik Barış Hareketi
Partisi, DBHP). In its preliminary defence the party relied on criticism
voiced by lawyers and said: ‘Since the Diyanet only deals with the reli-
gious affairs of Muslims, this creates inequality between them and
members of other religions.’ Although the party foresaw some changes
in the organisation of the Diyanet, it did not want to abolish it and ac-
cordingly proposed that ‘the Diyanet should be above all religions and
protect them all rather than being involved in the conflict between reli-
gious sects.’36
A third party, the Democratic Mass Party (Demokratik Kitle Partisi,
DKP) stated in its programme that ‘[r]eligious affairs and education
should not be undertaken by the State but be left to the community at
large and religious communities.37 They further voiced their opinion
that ‘[t]he running of religious centres and the education and training
of religious personnel, their appointment, pay and related matters
should be the concern of only religious communities.’38
Only one party which suggested the abolition of the Diyanet was dis-
solved;39 the others, which wished to change the status and function of
the Diyanet, were not dissolved (Koçak 2002: 146-147).
Another important judgment in this connection was the dissolution
of the Refah Partisi, a case which was also dealt with by the European
Court of Human Rights (EctHR).40 The EctHR agreed with the inter-
pretation of the Turkish Constitutional Court that the RP was dissolved
on grounds that it had become ‘a centre of activities inimical to the
principle of secularism’ and that ‘the rules of the sharia are deemed to
be incompatible with democracy, and the intervention of the State to
preserve the secular nature of the political regime is considered “neces-
sary in a democratic society.”’41 As such, dissolution of the party was
not found to be in violation of Article 11 of the European Convention on
Human Rights (ECHR). The EctHR worded its decision as follows:
ISLAM AND NATIONAL LAW IN TURKEY 261

Refah’s infringements of the principle of secularism can be clas-

sified in three main categories: (i) those which tended to show
that the Refah intended to set up a plurality of legal systems, in-
troducing discrimination on the grounds of belief; (ii) those
based on references made by Refah members to jihad (holy war)
as a political method; (iii) those which tended to show that
Refah wanted to apply the shari’a to the Moslem community.42

This ruling is still under discussion in Turkey. Many agree with the
joint dissenting opinion of the European Court that the evidence was not
compelling. The dissenting opinion declared that the dissolution of the
party was based exclusively on the public statements and actions of lea-
ders and members of the party, but not on the statutes or political pro-
gramme of the party, nor the election manifesto or other public state-
ments issued by the party. No provision was found that served to under-
mine the secular character of the state as embodied in the constitution
and the party programme rather explicitly recognised the fundamental
principle of secularism.43
The majority of judges on the European Court, like the
Constitutional Court, determined that a system of legal pluralism would
lead to discrimination between individuals on the basis of their religion
and that such a societal model would be incompatible with the values
and principles outlined in the ECHR. But according to the dissenting opi-
nion, there was no evidence in the material presented to the court that
the party, once in government, had undertaken steps to actually intro-
duce legal pluralism as described above.

Later the decision was reaffirmed by the Grand Chamber stating that
‘the constitution and programme of a political party could not be taken
into account as the sole criterion for determining its objectives and in-
tentions’. The Court further concluded that:

There were thus convincing and compelling reasons justifying

Refah’s dissolution and the temporary forfeiture of certain politi-
cal rights imposed on the other applicants. It followed that
Refah’s dissolution might be regarded as “necessary in a demo-
cratic society” within the meaning of Article 11 § 2 and there had
accordingly been no violation of Article 11.

Mandatory religious education

Article 24 of the 1982 Constitution introduced a new course on reli-
gious culture and morality into all primary and secondary schools as a
compulsory subject.44 Since 1980, the national curriculum presents
262 MUSTAFA KOÇAK

both Atatürk and the Prophet Mohammad, showing them in some way
as objects related to religion (Kaplan 2003: 113). Such courses thus pro-
mote identification with the Turkish nation and its impressive history,
reaching contemporary levels of economy and technology and obedi-
ence to State authority (Kaplan 2003: 114).
However, the ECtHR, and subsequently the decisions of the Turkish
Council of State, found the content of the obligatory nature of religious
and ethical studies to be unacceptable. In brief, the Court decision in
the case of Hasan and Eylem Zengin vs. Turkey reads as follows:

[…] the Court concludes that the instruction provided in the

school subject “religious culture and ethics” cannot be consid-
ered to meet the criteria of objectivity and pluralism […] to re-
spect the religious and philosophical convictions […] of the Alevi
faith, on the subject of which the syllabus is clearly lacking.45

Currently, the course on religious studies and ethics is still part of the
educational programme and all students of primary and secondary
schools are obliged to take this course. However, following the two
judgments of the Turkish Council of State (Danıştay) corroborating the
decision of the ECtHR46, the syllabus, which was initially in accordance
to Sunni principles, was changed incorporating ethics studies and the
philosophy of all religions.

6.6 Personal status, family, and inheritance law

Concerning personal status, family, and inheritance law, at present,

there is no place within the laws of the Turkish Republic for religious
rules or the shari’a. The Swiss civil code concerning persons, family,
and succession was promulgated with modifications on 4 October
1926. The Swiss Law of Obligations was translated from its French text
and promulgated on 22 April 1926. The current Turkish Civil Code of
2001 is an updated version of the earlier code. In 2001, a first para-
graph was added to Article 41 of the Constitution, which states that the
family is the basis of the society and relies on equality between the
spouses.
Although polygamy was legally banned with the acceptance of the
Swiss civil code in 1926, it is still possible to find polygamous unions
in some regions, particularly in rural areas in the south-eastern part of
the country; however, it is rare and was not very common even before
1926, when the Swiss civil code came into force (Kağıtçıbaşı: 6). A sur-
vey by Remzi Oto and Mustafa Ozkan indicated that nearly a third of
polygamist men married for the second time after falling in love with
ISLAM AND NATIONAL LAW IN TURKEY 263

another woman. Some were forced into marriage at an early age and
wanted a second wife, while others viewed a second marriage as a form
of self-assertion and proof of their manhood.47
With respect to inheritance, although the civil code gives the same in-
heritance rights to women as it does to men, it is not unknown that in
some traditional and isolated areas a woman inherits either nothing or
one-half of what a man receives. However, the disputes are solved with-
in the family or within the village context and have little or nothing to
do with the state legal or administrative structures (Kağıtçıbaşı 1982: 7).

Personal disclosure of religious information

As explained in the previous section, Article 7 of the Civil Registration
Services Act is in conflict with Article 24 of the Constitition of 1982,
and as such the issue of disclosure of one’s religious affilitation re-
mains a concern. This issue had been taken to the Constitutional
Court, which decided the case in 1995, stating that the requirement to
fill in the information box on one’s religion was not contrary to the
principle of secularism.48
The issue was later challenged again by Mr Işık after his request to
change his religious affiliation on his identity card from ‘Islam’ to
‘Alevi’ was denied by the administration. On 7 September 2004 the
District Court dismissed the applicant’s request, basing its decision on
the opinion it had sought from the legal advisor to the Office of
Religious Affairs. In brief, the court held that the term ‘Alevi’ referred
to a sub-group of Islam and that the indication ‘Islam’ on the identity
card was correct. The applicant appealed against this decision, but the
Court of Cassation upheld the judgment of the District Court.
The issue then was taken to the ECtHR, which addressed in its hold-
ing the legality of including religious information (or including a ‘reli-
gion’ box) on identification cards as follows:

The Government further contended that since the law of 2006

the applicant, in any event, could no longer claim that he was a
victim of a violation of Article 9, because since then all Turkish
citizens had been entitled to request that the information about
religion on their identity cards be changed or that the appropri-
ate entry be left blank. On this point the Court found that the
law had not affected its assessment of the situation. The fact of
having to apply to the authorities in writing for the deletion of
the religion in civil registers and on identity cards, and similarly,
the mere fact of having an identity card with the “religion” box
left blank, obliged the individual to disclose, against his or her
will, information concerning an aspect of his or her religion or
264 MUSTAFA KOÇAK

most personal convictions. That was undoubtedly at odds with

the principle of freedom not to manifest one’s religion or
belief.49

6.7 Criminal law

The Penal Code of 1926 was updated and promulgated on 9 September

2004 in the framework of harmonisation with the laws of the European
Union. There have been no direct or indirect references to shari’a law
in Turkish criminal legislation since the 1930s.

6.8 Commercial law and banking

In the area of banking, banking with no interest is at times discussed

and is not considered to indicate a diversion from laicism. In any event,
if there were to be such legislative moves, the Constitutional Court
would likely annul these as contravening the constitutional principle of
secularism. Moreover, Turkey has met the Copenhagen criteria and ob-
tained on 17 December 2004 a date for negotiations with the European
Union for full membership, discussions which began on 3 October
2005 and are ongoing. The Turkish legal system and Western laws are
in harmony in this field.

6.9 International agreements concerning human rights

Turkey signed the European Convention on Human Rights in 1950 and

ratified it in 1954. It signed the Convention on the Elimination of All
Forms of Discrimination against Women in 1979, ratifying it in 1985; it
came into force in Turkey on 19 January 1986. On 7 May 2004, a new
paragraph on equality was appended to Article 10 of the Constitution,
which reads as follows: ‘Women and men have equal rights. The State
is under an obligation to ensure that this right operates in everyday
life.’
Turkey also signed the 1966 International Covenant on Civil and
Political Rights in 1970. This covenant was ratified in 2003. The coun-
try accepted individual application to the European Commission of
Human Rights in 1987, individual application to the European Court of
Human Rights in 1989, and compulsory jurisdiction of the European
Court of Human Rights in 1990.
Turkey ratified the European Convention for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment in 1987
ISLAM AND NATIONAL LAW IN TURKEY 265

and signed the Convention Against Torture in 1984, ratifying it in

1988. In 1990, a ‘Human Rights Investigation Commission’ was set up
under the auspices of the Turkish Parliament. Turkey also ratified
Protocol 6 of the ECHR concerning the prohibition of the death pen-
alty, as amended by protocol 11 on 17 September 2003, and removed
the death penalty from Turkish law.
In June 1997, Turkey ratified the Eleventh Protocol of the European
Convention on Human Rights and Fundamental Freedoms, which re-
structured the machinery for enforcement of rights and liberties guar-
anteed by the Convention. In the process of harmonisation with the
E.U., the country has accepted a number of laws, the so-called ‘harmo-
nisation packages,’ to adapt the Turkish legal system to the legal sys-
tems of European states.

6.10 Conclusion

The dualistic law of the Ottoman Empire, with its division between cus-
tom (örf) and shari’a law, has to some extent paved the way for the adop-
tion of Western legal codes long before the foundation of the secular
Republic (Rosenthal 1965: 313). The large-scale legislation of the
Ottoman state, by so-called kanun-laws, was based on the sultans’ örf
powers (Rahman 1966: 80), which gave the Ottoman sultan the means
to respond to the pressure of events and to promulgate new laws and
institutions based on Western laws and Western institutions as he saw
fit (Akyol 1999: 143-158).
Although the Ottoman sultans fulfilled the dual functions of head of
the sultanate and of the caliphate, they effectively only operated as sul-
tans. It is important to note that European law was not imposed upon
the Ottoman Empire; there were rather voluntary borrowings, imita-
tions, and adaptations. No part of the Empire had ever been a European
colony (Örücü 1992: 40), though certain parts, such as Egypt, did have
a semi-colonial status during the final decades of the Empire. Lapidus
also emphasises this point: ‘Unlike other Muslim empires, the
Ottomans maintained their sovereignty and were able to implement
their own program of modernisation and reform’ (Lapidus 2002: 493).
Therefore, the modernisation movement hailing from the 1839
Reorganisation (Tanzimat) was the result of the will and desire of the
Ottoman-Turkish ruling class and elite. The 1839 movement started a
transition from religion-based law to national Western-inspired law.
Through the increase of Western influences, a cultural and legal dual-
ism was created. The legal system became a ‘mixed jurisdiction’: two
bodies of law of different origin, reflecting the rules and principles of
two of the major legal families in the world. The civilian tradition and
266 MUSTAFA KOÇAK

Islam were in effect operative together. However, the secular legal sys-
tem gradually narrowed the scope of religious laws and widened its
own area of application: ‘[T]he nineteenth century surely opened the
way for the twentieth century reforms as well as creating that important
element, an educated, enlightened elite’ (Örücü 1992: 51).
The second extremely important period for the Turkish legal system
began in 1920, when the Ottoman Empire collapsed and the Turkish
Republic rose from its ashes. The founder of the Republic, Kemal
Atatürk, tolerated the continued existence of Islamic law in the
Republic for only a very short period of time. Especially during the peri-
od 1924-1929, a number of voluntary receptions of codes of law from
Western countries gave Turkey its civilian, secular character. The
Constitution of 1924 confirmed the principle of laicism as a key foun-
dational principle of the Republic. After the 1930s, the influence of the
shari’a on national law evaporated. However, although Islam no longer
exercises a direct influence over the political, economic, and legal life of
the nation, it does exert an indirect influence on public life through its
effect on the social behaviour of the individual and communities.
After 1945, tendencies towards more democracy and Islamisation
have alternated with periods of military rule and enforced secularisa-
tion. Since the introduction of the multi-party system, religion has be-
come a political tool used for propaganda by most of the political par-
ties. From the establishment of the Republic until today, many political
parties have indeed been dissolved on the basis that they were involved
in anti-laic activities. In 1960, there was a military coup d’état, which re-
sulted in the appending of a bill of fundamental and social rights into
the constitutional framework, rather than implementation of a policy of
repression, as might have been expected. There was another military
coup in 1980, which resulted in a change of attitude both toward rights
and liberalism, and which led to the 1982 Constitution.
After the general election of 2002, the AK Party came to power. This
party was positioned right-of-centre in the political spectrum and exhib-
ited certain Islamic tendencies. One of the reasons for this politicisation
of religion was ‘the fact that the State has interfered with religion, and
that it has tried to decide what people should believe in and how they
should live’ (Bulaç 2003: 133). An alternative interpretation is offered by
Yavuz (2003), who claims that the AK Party symbolised the ‘democrati-
sation of Islam.’ According to the second analysis there is no actual dif-
ference between any given European Christian democratic party and
the AK Party. In fact, it is said that the priority of this party, whose
membership is largely drawn from the dissolved Islamic Welfare Party
(Refah Partisi), is integration with the European Union. Following a
problematic period in the 1980s and 1990s, in which the country was a
frequent target of foreign criticism, Turkey has endeavoured to stay
ISLAM AND NATIONAL LAW IN TURKEY 267

within the limits set by international law and to show its concern for in-
ternational legitimacy, as evidenced by the role it played in the 1991
Gulf War, in the aftermath of the 11 September 2001 disaster, during
the Afghan War, and recently in the 2003 Iraq intervention.
With regards to the relationship between state and religion, it seems
that the state is in charge of religious affairs. There are no Religious
Courts, only secular national courts. The Office of Religious Affairs is
directly responsible for the supervision of all aspects of religious life.
There are compulsory courses on religion and ethics, but no religious
garments may be worn in schools, including head covers. The country
plays an important role in the prevention of a possible clash of civilisa-
tions. Turkey has consistently sided with the Western world during the
international conflicts listed above. Turkey has also embraced the acquis
communautaire of the European Union in the legal, political, and eco-
nomic areas. Despite difficulties, it appears that the country is on its
way to becoming a full member of the E.U.
Nonetheless, not all Turks – not even those who insist on the separa-
tion of Islam from politics – agree on the current character of Islam
and its role in the state. The population can be divided between tradi-
tionalists and modernists who continue to debate these issues. Both re-
ligious and secular groups express their dissatisfaction with the
Republic’s understanding of laicism and the way in which this principle
is implemented.
There are two different perceptions of secularism which are at the
centre of the religious conflict in Turkey. The first of these perceptions
is passive secularism, which does not require the state to act. The sec-
ond is assertive secularism, which differs from passive secularism in
that it gives the state a duty to transform the society and the individual
in a rational way. This understanding of secularism does not attribute a
social role to religion in the lives of individuals except in their own con-
science and in places of worship. The fact that the general staff and the
judges of the High Courts50 have accepted the perception of assertive
secularism has caused the demands for the expansion of the freedom
of religion and conscience to be seen as a threat directed against the
Republic. The reason for the conflict over the issue of the türban has
arisen from these two different and opposing views of secularism.
Other concerns are largely in relation to the position of the Office of
Religious Affairs within the state’s administrative structure and the im-
plementation of compulsory religion and ethics courses in schools. An
author reflecting the views of the Islamist circles sums up the situation
as follows:

Religious circles do not oppose “laicism as a natural attitude of

the State”. The State should guarantee freedom of conscience
268 MUSTAFA KOÇAK

and religion; must be equidistant to all religions and beliefs; pre-

vent the domination of one belief group and system over others;
but should not prevent the living together overtly of all beliefs in
the public domain according to the principle of “unity within
plurality”. Religious people in Turkey wish to see laicism under-
stood in this manner (Bulaç 2003: 133 ; Kaplan 2003: 107-116).

On these issues there is a wide variety of opinion and a constant plural-

ist discussion in Turkey (Kara 2003: 87-106; Kaplan 2003: 107-116). At
the root of these debates we find a power struggle between CHP, which
is the founder party of the Turkish Republic and the main opposition in
the present parliament, the bureaucracy, the military and the judiciary
on the one hand and the political power of the government led by the
AK Party, backed by the votes of the people, on the other. Although the
judgments of the ECtHR have made a certain impact on the Turkish po-
litical and constitutional culture, the solution to this conflict is closely
related to the historical and political baggage that Turkey carries51 and
depends on leaving the power struggle aside, reaching a compromise,
and achieving a political consensus on the issues discussed.

Notes

1 The author has purposefully chosen for a different title for his chapter. The main rea-
son is that the secularisation of the law was largely complete after the declaration of
the Republic and the abolishment of the constitutional clause that identified the sta-
te’s religion as Islam. The rules of shari’a have not played any role since this process
was completed about ninety years ago.
2 Professor of Public Law at Okan University Faculty of Law, Istanbul, Turkey. The
author wishes to thank Prof. Dr Esin Örücü for her suggestions and comments and
also his colleagues Assist. Prof. Dr Sevinc Aydar and Research Assistant Bilgehan
Savascı for their assistance and support.
3 For statistics and up-to-date information from the Turkish government, see http://
tuik.gov.tr. Note that due to the paucity of objective empirical research done on ethnic
groups in Turkey the author has chosen not to provide exact numbers of commu-
nities in this chapter. To give a general idea, however, the Turks are thought to form
more than three-quarters of the total population.
4 The Turkish word for sharia (shari’a) is şeriat. Throughout the text the author will
use the term shari’a.
5 Among the countries where the Mecelle was in use we can cite Egypt, Hijaz (Saudi
Arabia), Iraq, Syria, Jordan, Lebanon, Cyprus, Palestine and Israel. The Mecelle was
in force in Albania and Bosnia Herzegovina until 1928 and in Kuwait until 1984.
Until quite recently, it was also still in force in Israel (Kaşikçi 1997: 33; Karçiç 1994:
46).
6 This law was in force in Syria until 1953 and in Jordan until 1951; it was also used as
a reference for decision-making in Israel/West Bank and is still in use in Lebanon.
Though this decree was not directly in use in Iraq, two edicts by the sultan on related
matters were implemented in that country (Aydın 1998: 318). It has been utilised as
ISLAM AND NATIONAL LAW IN TURKEY 269

a non-binding, persuasive source of law in family matters in Bosnia Herzegovina

(Karçiç 1994: 46).
7 See also Ahmad 1977: 363-364; Berkes 1998: 431-460.
8 Düstur 1872: vol 3, 152.
9 Official Gazette No. 63, dated 6 March 1924.
10 Sections 2 and 16 of the Constitution of 1924 cite the application of the Shari’a Law
among the duties of the Parliament.
11 The law is dated 13 December 1925. It has been said that the role of the Nakşibendi
Sect in the Seyh Sait uprising was an important factor in taking such a radical deci-
sion (Tanör 2002: 276).
12 For example as stables, lofts for the storage of hay or wheat, etc.
13 Article 19 of Part 2, § 2, states: ‘No person shall be allowed to exploit and abuse reli-
gion or religious feelings or things considered sacred by religion in any manner
whatsoever for the purpose of political or personal benefit, or for gaining power, or
for even partially basing the fundamental social, economic, political and legal order
of the State on religious dogmas. […]’
14 Article 19 of Part 2, § 2, states: ‘Religious education and teaching shall be subject to
the individual’s own will and volition, and in the case of minors, to that of their leg-
ally appointed guardians.’
15 For more discussion and analysis about the 1982 Constitution, see 5.5.
16 See Danıştay 8. Daire (Council of State, 8th Division) E. 1984/636.K.1984/1574, dated
13 December 1984.
17 As we have stated in the beginning, the sections as constructed for this study this
chapter were formed by taking into account the history and key developments of
other Islamic countries. For Turkey, the 1980 military coup would have been a more
natural time to start a new section.
18 This law made amendments to the Law on Higher Education. It added a provision
stating that it is compulsory to be dressed in modern clothes in higher education in-
stitutions, but it is free to wear a headscarf or turban to cover one’s head and neck
for religious beliefs. This law was made to enable access to university education to fe-
male students who covered their heads because of their religious beliefs.
19 The judgment of the Constitutional Court, E. 1989/1, K. 1989/12, in Resmi Gazete
(Official Gazette) No. 20216, dated 7 March 1989.
20 For instance, in January 1997 Prime Minister Erbakan invited some leaders of Sufi
paths and dervish orders (tariqas) to the Office of the Prime Minister for dinner dur-
ing Ramadan. The Iranian Ambassador who was invited to a ‘Kudüs evening’ and
the Mayor of the Sincan region of Ankara made speeches on 2 February 1997, under-
stood by some to be calls for the overthrow of the republican regime. The following
day military tanks drove through the streets of Sincan, the Mayor was apprehended
and Iran had to call back its Ambassador.
21 See Mert, N. (2005), ‘AIHM’nin Türban Kararı’, in Radikal, dated 15 November.
22 See Aktan, G. (2004), ‘AIHM Türban Kararı (1)’, in Radikal, dated 7 July.
23 See Report: http://www.internethaber.com, dated 14 September 2006.
24 For the full text of the Bill see www.basbakanlik.gov.tr/docs/kkgm/kanuntasarilari/
101-1262.doc.
25 See http://www.webhatti.com/wh-haber-bulteni/23938-turkiye-de-3-bin-379-kisinin-ta-
pulu-camisi-var.html, 15 May 2007.
26 See http://www.haber3.com/haber.php?haber_id=222515, dated 29 March 2007.
27 See http://www.tsk.mil.tr/, dated 27 April 2007.
28 For analysis and related discussion, see Turkish newspapers from 28 April 2007 (e.g.
http://www.radikal.com.tr/index.php?tarih=27/04/2007 and http://hurarsiv.hurriyet.
com.tr/goster/haberler.aspx?id=2065&tarih=2007-04-27).
270 MUSTAFA KOÇAK

29 See e.g. http://news.bbc.co.uk/2/hi/business/6606723.stm, dated 1 May 2007.

30 See Akyol, T. (2006), ‘Dindarlık, Laiklik, Kimlik’, in Milliyet, dated 22 November.
31 Judgment of Constitutional Court of 5 June 2008, E. 2008/16, K. 2008/116.
32 See http://www.diyanet.gov.tr/english/default.asp,
33 Section 89: ‘Political parties shall not have an aim that runs counter to Article 136 of
the Constitution, which provides that the Office of Religious Affairs is bound to carry
out the duties assigned to it in accordance with the principle of laicism.’ It is antici-
pated that this article will soon be abolished. Discussions surrounding this issue will
not, however, be further addressed in this chapter.
34 Judgment of the Constitutional Court of 23 November 1993, E. 1993/1, K.1993/2,
AMKD (Journal of Constitutional Court Decisions), No. 30, Vol. II, pp. 845-935, in
particular pp. 879, 906.
35 Compare dissenting opinions in E.1993/1 (Siyasi Parti Kapatma), K.1993/2, dated 23
November 1993, AMKD (Journal of Constitutional Court Decisions), No. 30, Vol. II:
841-935.
36 Compare Judgment of the Constitutional Court of 22 May 1997, E.1996/3 (Siyasi
Parti Kapatma), K.1997/3, Resmi Gazete, No: 24067, dated 2 June 2006, p. 21.
37 Compare E.1997/2 (Siyasi Parti Kapatma), K.1999/1, KT. 26 February 1999, Resmi
Gazete, No. 24591, dated 22 November 200, p. 63.
38 Resmi Gazete (Official Gazette: 131), No. 24591, dated 22 November 2001.
39 See note 32. This was one of the judgments of the Court that led to the decision to
revoke Article 89 of the Constitution.
40 Judgment of the Constitutional Court of 16 January 1998: E.1997/1, K.1998/1, dated
16 January 1998, AMKD (Journal of Constitutional Court Decisions), No. 34, Vol. II,
pp. 762-1145.
41 See Refah Partisi Erbakan, Kazan and Tekdal and Others vs. Turkey, Judgment No.s
41340/98, 41342/98, 41343/98, 41344/98, Decision of 3 October 2000, para. 59. For
further analysis, see Koçak & Örücü 2003: 399-423.
42 See ibid, para. 68.
43 The topic of Islamic marriage, for example, was not discussed in the party pro-
gramme or in speeches made by party functionaries, nor did it play a role in the case
against the party.
44 The Turkish Constitution of 1982, § 24(4): ‘Education and instruction in religion and
ethics shall be conducted under state supervision and control. Instruction in reli-
gious, cultural and moral education shall be compulsory in the curricula of primary
and secondary schools. Other religious education and instruction shall be subject to
the individual’s own desire, and in the case of minors, to the request of their legal
representatives.’
45 See the case Hasan and Eylem Zengin vs. Turkey, Judgement (Application No. 1448/
04), dated 9 October 2007, para. 70.
46 See Danıştay 8. Daire (Council of State 8th Division), E. 2006/4107, K. 2007/7481,
dated 28 December 2007; and E. 2007/679, K. 2008/1461, dated 29 February 2008;
E. 2006/4107, K. 2007/7481, dated 28 December 2007.
47 See Report (2005): ‘Too much of a good thing; Turkey and polygamy’, The Economist
377, Issue 8458: 71, dated 24 December.
48 See Judgment of Constitutional Court of 21 June 1995, E.1995/17, K. 1995/16.
49 See Judgment of ECtHR, Sinan Işık vs. Turkey, Application No. 21924/05, dated 2
February 2010.
50 According to Articles 146-158 of the 1982 Constitution, the High Courts in Turkey are
the Constitutional Court, the Court of Cassation, the Council of State, the Military
Court of Cassation, the High Military Administrative Court and the Court of Conflicts.
51 Koçak & Örücü 2003: 407-408.
ISLAM AND NATIONAL LAW IN TURKEY 271

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7 Sharia and national law in
Afghanistan

Nadjma Yassari and Mohammad Hamid Saboory1

Abstract

Legal pluralism is the hallmark of Afghan legal reality. Afghan law

is a combination of Islamic law, state legislation, and local cus-
tomary law. This chapter traces the origins of that plurality and
shows that the lack of clarity regarding the relationship between
these different sources of law and the absence of guidelines as
how to resolve conflicts between them is still causing many pro-
blems in Afghanistan today. Despite the existence of official law,
i.e. the formal legal system established under the provisions of a
constitution, the socio-legal reality is not reflected by it, and the
law in the books does not represent the norms that actually gov-
ern the lives of the majority of the population. For ordinary people
and villagers, who form the majority of the populace, tribal/cus-
tomary and Islamic law are more significant and actually better
known than any state legislation. As a result, in Afghanistan it is
not the implications of sharia or sharia-based law that, at least for
the moment, prevents the application and implementation of in-
ternational legal and human rights standards, but the lack of a
system by which the rule of law may be established so that the le-
gal system is capable – practically, socially, politically – of guaran-
teeing and enforcing laws effectively. Although the Government of
Afghanistan is committed to carrying out its duties imposed not
only by Afghanistan’s domestic laws but also by the country’s in-
ternational obligations, the greatest challenge to action is the lack
of security and the fragile peace balance in the country.
Table of contents
7.1 The period until 1920. The struggle for an independent
and unified nation 275
7.2 The period from 1920 until 1965. The struggle between
modernity and traditionalism 277
1919-1933: The first Afghan constitutions 277
1933-1964: Modernity and traditionalism revisited 280
7.3 The period from 1965 until 1985. Communism and the
Republic of Afghanistan 281
1964-1973: Zahir Shah and tentative constitutionalism 281
1973-1978: The creation of the Republic of Afghanistan 284
1978-1985: The Saur-Revolution, the mojāhedīn, and
Soviet invasion 286
7.4 The period from 1985 until the present. From civil war to
democracy 289
1985-1992: Afghan civil war 289
1992-2001: The Taliban and the rise of fundamentalism 290
2001-present: Democracy and the future of Afghanistan 293
7.5 Constitutional law 298
7.6 Family and inheritance law 301
Marriage 302
Polygamy 305
Divorce 306
Code of Personal Status of Shi’i Afghans 307
7.7 Criminal law 308
7.8 Other legal areas, especially economic law 309
7.9 International treaty obligations and human rights 310
7.10 Conclusion 312

Notes 314
Bibliography 316
SHARIA AND NATIONAL LAW IN AFGHANISTAN 275

With an estimated population of more than 30 million inhabitants,

Afghanistan is composed of more than ten ethnic and tribal groups, most of
whom have lived together in the country for centuries. These include the
majority Pashtuns, who constitute almost one half of the population,
followed by a quarter of the population of Tajiks (27%), and sizeable
communities of Uzbecs (9%) and Hazara (9%). Turkmen (3%), Aimaq
(4%), Baluch (2%), and small communities of Brahui, Nuristani, Pashaie,
Pamiri, Khirgiz, and Qizilbash are also represented. Each of these groups has
had its own forms of languages, culture, and religious beliefs over the course
of Afghanistan’s history. However, the centuries-long interaction between all
these groups, although distinguishable by accent and clothing for example,
has resulted in a cultural blending of various Afghan ethnic and tribal
traditions (Wardak 2005: 63). The country is almost exclusively Muslim with
a majority Sunni population (80%) and an estimated 19 per cent Shi’i
population. Afghan Persian or Dari is the official language, spoken by about
one half of the population, with Pashtu, also an official language, spoken by
some 35 per cent of people. Turkic languages are also spoken by some groups
(11%), as well as another thirty minor languages that have been identified
(e.g. Baluchi and Pashai). Many individuals speak more than one language.

(Source: Bartleby 2010)

7.1 The period until 1920

The struggle for an independent and unified nation

Afghanistan’s geographic placement at the crossroads of civilisations

determined its fate as early as the fourth century B.C. when Alexander
the Great defeated the Persian invaders who had been the first to
achieve domination. A series of conquests followed with particularly de-
vastating invasions by the Mongol leaders Genghis Khan and
Tamerlane. Two thousand years of ravage and invasions stalled the es-
tablishment of a unified state, which did not come about until the eight-
eenth century. The first Afghan kingdom, more a confederation of
tribes then, was established by Ahmad Shah Durrani in 1747. He was
approved as the first Afghan king in Kandahar in a mass gathering of
the Afghan people referred to as the ‘Great Assembly’ (Loya Jirga),
which was only later again taken up when it was reactivated as the
National Assembly in the early twentieth century (see 7.3). Afghanistan
ultimately emerged as a nation in the mid-nineteenth century, by which
time the new rulers had to cope with the colonial ambitions of the
British and the Russians (Reynolds & Flores 2005: 1-3).
276 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

The Second Anglo-Afghan War of 1878-1880 resulted in the creation

of an independent Afghan kingdom within the British sphere of influ-
ence, serving as a buffer zone between Russia and India. Its present
boundaries were fixed during the reign of King Amir Abdul Rahman
(1880-1901), who aimed to bring the region’s tribes and ethnic groups
under centralised control, unify the country politically, and establish a
central government with a certain degree of standardised administra-
tion. Amir Abdul Rahman held the position of King and Chief Justice,
issuing verdicts in accordance with the principles of Islamic law and
traditions.
In 1896 a compilation of criminal rules based on Hanafi law was pro-
claimed (Vafai 1988: 24). The king was vested with the authority to pre-
side cases dealing with rebellion, embezzlement, forgery and bribery by
government officials, treason, and crimes against the state and mem-
bers of the royal family. In all other cases, law was dispensed by
Religious Courts and religious judges. Statutory enactments of this area
were basically designed to reiterate Islamic law. For example a guide
called ‘the judges principles’ (asās ol-qod,āt) that drew from the classical
Hanafi law was issued by Amir Abdul Rahman in the late 1880s and
was designed to control the activities of the judges (Kamali 1985: 35;
Vafai 1988: 24). Additionally, judges had to comply with an elementary
court procedure outlined in a guideline for civil and criminal matters
called ‘book of governance’ (ketābče-ye h,okūmatī). Amir Abdul Rahman
divided the existing laws of his kingdom into three groups: sharia law,
administrative laws (qānūn), and tribal laws. Likewise, he established
three kinds of courts: the Religious Courts, which in fact already ex-
isted, that dealt with religious and civil matters; criminal courts admi-
nistered by chiefs of police (kotwals) or by judges; and a board of com-
merce consisting of merchants, who settled business disputes (Vafai
1988: 11-12). Tribal groups had always had their own ways of dispute
settlement. This was done in particular through the local assemblies
(jirgas) following a specific procedure (see 7.10).
Amir Abdul Rahman reigned with an iron fist. The country was
stable with little or no internal unrest. Afghanistan remained, however,
a fragmented country with local governors acting with virtual autonomy.
In addition, the country was held in a stranglehold by a corrupt and fa-
natic system of Islamic clerics (mullahs), absolutely opposed to any ad-
vancement that could potentially weaken their power. This held espe-
cially true in the tribal hinterlands of Afghanistan.
After Amir Abdul Rahman’s death, his son Habibullah succeeded
him. Habibullah (1901-1919) eased the system of compulsory conscrip-
tion, dismantled his father’s secret intelligence service, and put an end
to some of the most brutal forms of corporal punishment. At the same
time, religious organisations regained some of their former influence
SHARIA AND NATIONAL LAW IN AFGHANISTAN 277

(Ewans 2001: 80). The new king also founded a state council for tribal
affairs and gave the tribal chiefs more autonomy in the administration
of regional affairs. He ensured that the quality of education was im-
proved by setting up schools of higher education based on the French
model as well as military academies and teacher training institutes. The
first hydroelectric power plant was also built during his reign. Under
Habibullah a four-part compilation of Islamic law encompassing the ci-
vil and criminal principles of the sharia was made, the so-called
‘Supreme Commandments’ (sirāj ol-aḥkām), to be used as a framework
of reference by judges (Kamali 1985: 35).
During World War I, Habibullah aligned himself with the British.
This was a dangerous decision because the population was strongly op-
posed to the British and their domination of their country. Many
Muslims were reticent about supporting an ‘infidel empire’ against the
former seat of the Caliphate, the Ottoman Empire. Habibullah was ac-
cused by his people for having failed to achieve full independence from
all foreign powers and was assassinated on 20 February 1919 in a hunt-
ing resort far from Kabul. When Amanullah, Habibullah’s son, suc-
ceeded to the Afghan throne in 1919, the country was plagued with eth-
nic divisions, tribal conflict, and corrupt religious fanaticism.

7.2 The period from 1920 until 1965

The struggle between modernity and traditionalism

1919-1933: The first Afghan constitutions

Amanullah’s first act as a king was to declare war on the British to end
their domination in Afghanistan. On 3 May 1919, the third and last
Anglo-Afghan war started and ended with the Treaty of Rawalpindi
signed on 8 July 1919. Amanullah (1919-1929) was determined to re-
form Afghan society. From 1919 to 1923, a series of political, legal, and
judicial initiatives were taken at his instigation with the aim of resolving
the fractures of Afghan society (Kohlmann 1999). Slavery was formally
abolished; campaigns of reconciliation against the violent divisions be-
tween Sunni and Shi’i were undertaken; and the status of the non-
Muslim minorities was improved by abolishing their jezye tax (a poll tax
levied from non-Muslims in Islamic societies).
Amanullah sought to bring Western secular law to his homeland. He
was looking in particular at Kemal Atatürk in Turkey and Reza Shah in
Iran. In April 1923, he enacted Afghanistan’s first formal written consti-
tution, the constitution of the government of Afghanistan, the nezām-

nāme-ye asāsī-ye dūlat-e cālīe-ye afghānestān (Vafai 2001: 93).2 This first
legal text, consisting of 73 articles, included a list of basic freedoms that
278 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

the Afghan people had never been awarded, such as freedom from tor-
ture, freedom from unlawful search and seizure, personal freedoms,
and guarantees of justice from government officials. Islam was in-
scribed as the official religion of the state, but the constitution also
granted protection to the followers of other religions. The equality of all
Afghan citizens, access to political rights, personal freedom, freedom of
the press, and the right to education were guaranteed. The Constitution
of 1923 prohibited extra-judicial or extra-legal punishment; courts were
to be the only legitimate institutions to deal with all disputes within so-
ciety. The independence of the judiciary and the courts was recognised,
and any kind of intervention in court procedure was prohibited. A spe-
cial High Court was established temporarily to deal with crimes com-
mitted by members of government and ministers. Elementary educa-
tion was declared compulsory for all Afghan citizens. Amanullah also
introduced the right of women to education, permission for female stu-
dents to travel abroad for higher education purposes, abolished child
marriage, and put restrictions on polygamy. He furthermore issued a
new administrative regulation, transferring jurisdiction of family mat-
ters from the Religious Courts to civil courts (Vafai 1988: 12).
Afghanistan’s first constitution triggered the enactment of a plethora
of other legislation (nezām-nāme)

related to administration, education,
social institutions, trade, and industry. More than 51 nezām-nāme

were
published between 1919 and 1927,3 including the Law on Marriage,
Wedding and Circumcision (nezām-nāme-ye

nikāh,, carūsī, khatneh sūrī)
in 1921, as amended in 1926. This statute and all its successors (the
Marriage Laws of 1934, 1949, 1960 and 1971) were a piecemeal legisla-
tion, enacted to address very specific questions on particular, mostly
economic issues revolving around marriage, such as the expenses for
weddings and other family ceremonies.4
c
In 1925, a penal code (nezām-nāme-ye

omūmī-ye jazā) was published
(Vafai 1988: 25). It contained 308 articles and was primarily based on
sharia principles, with some influence from the French penal code of
the time. Article 1 of the Afghan Penal Code (1925) categorised crimes
into three categories, as is done in the classical sharia: ḥodūd (class of
punishments that are fixed for certain crimes, including theft, fornica-
tion, consumption of alcohol, and apostasy); qes,ās, (retaliation); and
taczīr (punishments that are administered at the discretion of the
judge). The law concerning the court procedure (nezām-nāme-ye

tashkīlāt-e asāsī) required judges and the sharia courts to issue decisions
in accordance with the provisions of the penal code. A group of reli-
gious scholars (ulama) also compiled a guide for judges (tamassok al-
qod,āt-e amāniye). It consisted of two parts, a civil and a criminal part
(Kamali 1985: 37). The first enactment of a military penal code (nezām-

nāme-ye jazā-ye caskarī) was another major step towards more legal
SHARIA AND NATIONAL LAW IN AFGHANISTAN 279

certainty, especially considering that the Constitution of 1923 embraced

the principle of the rule of law in criminal matters (Art. 21).
Amanullah’s reforms were, however, responded to with hostility. The
advent of civil, secular law was not accepted by Amanullah’s assorted
enemies among the mullahs, who saw their power fading in a more
educated society. They accused the nezām-nāme

of being un-Islamic and
in violation of God’s laws. When Amanullah attempted to change the
free day of the week from Friday to Thursday and ordered the unveiling
of women and the compulsory wearing of European dress, the enraged
mullahs joined forces with the tribesmen, who resented Amanullah’s
meddling in their affairs, and gradually began to destabilise his govern-
ment. Amanullah had to make concessions. In the late 1920s, he
agreed to end female education by the age of twelve, to rescind the pro-
hibition on child marriages, to allow polygamy, and to strike down the
freedom of religion as set forth in the nezām-nāme

(Kohlmann 1999).
His efforts to provide Afghanistan with a modern legal framework were
perceived as too radical by his fellow countrymen. His constitution and
the changes he endeavoured to introduce underestimated the strength
of traditionalism and conservative opinion.

Despite his many attempts to unify the country and help it overcome its
ethnic and religious fractures, these grew only worse as the country be-
came subject to fanatically competing leaders with extremist ideologies.
In early 1929, Amanullah abdicated and went into temporary exile in
India. His attempt to return to Afghanistan failed, as he could not se-
cure the support from his people. From India, the ex-king travelled to
Europe and settled in Switzerland, where he died in Zurich in 1960.
In contrast to Amanullah, his successor Nadir Shah (1930-1933), a
military general in Amanullah’s reign, adopted a more conservative
path. His policies are reflected in the Constitution of 1931, which over-
ruled many of the Amanullah reforms and numerous nezām-nāmes.

Against the backdrop of near anarchy in the country following
Amanullah’s abdication, a new constitution (oṣūl-e asāsī-ye dūlat-e cālīe-ye
afghānestān) was promulgated on 31 October 1931 (Ewans 2001: 101). It
contained 110 articles and clearly endorsed the traditional supremacy of
sharia in Afghanistan. This is manifested in the numerous references
to the sharia, which essentially amounted to proclaiming sharia as the
law of the country. Islamic law continued to dominate judicial practice,
and the limited number of statutes that still existed was mainly con-
cerned with procedural and administrative matters. The Constitution of
1931 was not only in clear contrast with its predecessor in its emphasis
on adherence to Islam in legislation and government affairs but also
clearly more conciliatory towards the tribal establishment.
280 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

The progressive views of Amanullah and the conservative approach

of Nadir Shah created discontinuity in the legal and social order; the
contradictory objectives of the constitutions of 1923 and 1931 gave
further rise to disorientation and dissatisfaction. The need for corrective
measures to bring about a balance between the expressions of the mod-
ernist and conservative ideological currents in the country was strongly
felt.

1933-1964: Modernity and traditionalism revisited

In 1933 Nadir Shah was assassinated. His son Zahir Shah succeeded
him at the age of 18. While officially Zahir Shah was proclaimed king,
from 1933 onwards Afghanistan was effectively ruled by his uncle
Hashim, who took the position of royal prime minister (1933-1946).
Hashim was keen to implement the strict rule of the sharia (Ewans
2001: 104). Nonetheless, the proliferation of newspapers and journals,
although under strict censorship, allowed for the exchange of ideas
among the Afghan elite regarding the interactions between modernity
and the rule of Islam in society and the life of the individual.
Archaeological excavations conducted by the French fostered some ideas
of a glorious pre-Islamic past, and encouraged secular ideas among
Afghan intellectuals. The Afghan economy advanced with the introduc-
tion of Western banking institutions, the enhancement of exports of
agricultural products, and transit trade through Russia. External rela-
tions expanded with other countries such as Japan, Germany, Italy, and
the United States. In 1946, Hashim retired following the wish of the
royal family and was replaced by Sardar Shah Mahmoud Khan, another
uncle of Zahir Shah, as prime minister (Ewans 2001: 105).
Sardar Shah Mahmoud Khan (1946-1953) was a more tolerant and
liberal ruler. He had political prisoners released and allowed a certain
degree of freedom of the press. Relations with the United States im-
proved, many projects were undertaken in construction, and the educa-
tional system started to develop once again. Despite all his efforts, how-
ever, the country was moving toward destabilisation once again. In
1953, Sardar Shah Mahmoud Khan was replaced by his cousin,
Mohammad Daoud Khan, who took over the position of prime minister.
Through cooperation with the Soviet Union and the United States, the
economy was further developed. While the American influence was
visible at the University of Kabul, the Russians pressed for another in-
stitute of higher education and established the Kabul Polytechnic. The
Afghan army was reformed and modernised with Russian weapons
after America twice refused the proposal made by Afghan authorities to
supply the Afghan military with arms (Magnus & Naby 2002: 47).
SHARIA AND NATIONAL LAW IN AFGHANISTAN 281

The Constitution of 1931 remained in force, ensuring the prominent

position of the sharia. From 1933 until the promulgation of a new con-
stitution in 1964, a mixed pattern in legislation developed, leading to
confusion over the relationship of state law to sharia, especially in cases
of ambiguity and conflict between them. The courts generally applied
the Arabic manuals of the Hanafi school of law and the Ottoman
Mejelle, i.e. the codified version of the Hanafi school for civil transac-
tions, excluding family law (Kamali 1985: 36). An early departure from
this pattern came about with the promulgation of the Commercial Code
of 1955 and the Commercial Procedure Code of 1963, both of which
were not based on the sharia but on Western models (see 7.8).
This period can be seen as a time in which attempts were made to
bring together the modern and conservative elements in Afghanistan.
When members of the royal family appeared unveiled at the annual
ceremony marking Afghanistan’s independence, for instance, the reli-
gious establishment protested seriously. Daoud, who was well versed in
matters of theology, though, insisted that veiling was not required in
Islam. When the mullahs persisted with their campaign, they were
thrown into jail without getting any public support. This was an alto-
gether different outcome of events than had been the case with the fias-
co of Amanullah’s attempted reforms thirty years earlier.

7.3 The period from 1965 until 1985

Communism and the Republic of Afghanistan

1964-1973: Zahir Shah and tentative constitutionalism

Daoud was forced to resign in 1963. Shortly thereafter, Zahir Shah pro-
mulgated Afghanistan’s third constitution, which was approved by the
Loya Jirga (the National Assembly) on the 1st of October 1964.5 This
constitution was conceived over a period of eighteen months and re-
flects to a certain degree public consultations and debates from this per-
iod in its contents. The 1964 Constitution paid attention to issues of in-
stitution-building and democratic structures, namely the role and struc-
ture of a parliamentary democracy and the independence of the
judiciary. Indeed, this constitution introduced for the first time, at least
on paper, the separation of powers to the Afghan legal system.
The constitution excluded members of the royal family from political
offices, but retained considerable powers for the king (Amin 1993: 17).
As head of the state, he embodied national sovereignty and was the
guarantor of the basic precepts of Islam and of the country’s indepen-
dence. The king was supposed to be a follower of the Hanafi doctrine
282 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

(Art.s 6-8). According to Article 15 of the Constitution of 1964, the king

was accountable to no one and had to be respected by everyone.
Article 2 of the constitution declared ‘the sacred religion of Islam’ as
the religion of Afghanistan. Equality of all human beings (Art. 25), se-
crecy of people’s communication (Art. 30), and freedom of expression
(Art. 31) were declared to be fundamental rights. A fundamental step to-
wards more political participation was taken in Article 32 of the consti-
tution; it allowed for the first time the formation of political parties.
The aims and activities of a party, as well as its ideology, had to be in ac-
cordance with the values embodied in the constitution. Financial re-
sources should be available to create a political party, and a party
formed in accordance with the provisions of the law could not be dis-
solved without judicial proceedings and the decision of a competent
court.
Article 103 of the constitution introduced a new institution, that of
the Attorney General. Its duty was to investigate criminal activities as
an independent body of the executive power of the government. The ju-
dicial branch was not to interfere in its activities. The office of the
Attorney General was similar to the American institution of Attorney
General, indicating that to a certain extent the Constitution of 1964 was
influenced by the U.S. Constitution.
Although the Constitution of 1964 concentrated most state authorities
in the person of the king, it was still the most liberal constitutional docu-
ment ever in Afghanistan. Parliament was to consist of two houses; the
House of the People (Wolesi Jirga), elected by the people of Afghanistan
in free, general, secret, and direct elections in accordance with the pro-
visions of the law for a period of four years; and the House of the
Elders (Meshrano Jirga), one-third of its members to be appointed by the
king and the remaining two-thirds to be elected in free, general, secret,
and direct elections (Art. 43). The government was required to publish
all legislation in the Afghan Official Gazette (jarīde rasmī) which was to
be distributed to the courts and other legal institutions.6
The judiciary was to consist of a Supreme Court and other courts,
with the task of adjudicating all litigation brought before them (Art.
98). The judges, who could be held accountable by the newly founded
Supreme Court, were appointed by the king (Art. 99). The Supreme
Court was established, with branches for civil, commercial, criminal,
military, and national security cases. For the first time, a juvenile court
was established in Kabul to adjudicate in cases where the defendant
had not yet reached the age of fifteen (Lau 2003: 52).
The 1964 constitution was the first to provide a clear definition of
‘law’ and to establish a formal order of priority in favour of statutory
law. Article 69 provided:
SHARIA AND NATIONAL LAW IN AFGHANISTAN 283

Law is a resolution passed by both Houses, and signed by the

king. In areas where no such law exists, the provisions of the
Hanafi jurisprudence of the sharia of Islam shall be considered
as law.

Although the rights and duties given to the Houses of Parliament by

the 1964 Constitution were important and could have been the basis
for people’s participation in politics, in reality, the Houses remained lar-
gely ineffective, and no significant body of statutory law emerged. The
Constitution of 1964 had established a powerful parliament and, thus,
reversed the hitherto prevailing role of a more powerful executive.
Consequently, the two engaged in a power struggle, both failing to ad-
just to their new roles under the constitution. Thus, like its predeces-
sors, the third Afghan constitution was not implemented. No law for
the formation and organisation of political parties was drafted, nor did
any independent political party emerge, much less gain permission to
be registered in Afghanistan (Rubin 2002: 73). The king’s democratic
experiment failed because he did not allow the constitutionally-man-
dated liberties to take root, as is evidenced by the fact that there was no
law on political parties or on provincial councils and municipalities and
by the fact that no attention was paid to the judicial reforms required
by the 1964 Constitution. The conflict between the legislative and ex-
ecutive powers further exacerbated the instability and problems pla-
guing the Afghan political scene.
On 1 January 1965, Noor Mohammad Taraki formed the People’s
Democratic Party of Afghanistan (PDPA), which became known as the
‘Khalq’ party. Like all other parties in Afghanistan, the PDPA was an
unofficial, clandestine party that was not registered with the govern-
ment. The PDPA soon split into two parties because of disagreements
between its leaders Taraki and Babrak Kamal. Whereas Taraki remained
head of the ‘Khalq’ party, Karmal established the ‘Parcham’ party in
1967.7 Most of the supporters of Khalq were Pashtuns from the rural
areas in the country. The Parcham supporters came mostly from urban
citizens and supported social-economic reforms in the country. The
Khalqs accused the Parchams of being under the allegiance of Zahir
Shah.8 Meanwhile, the influence of communism began to become ever
more visible, both groups being consistently pro-Soviet, and being
strongly supported by the Russian embassy and Soviet advisors in
Kabul.
A Criminal Procedure Code was enacted in 1965; it consisted of 500
articles addressing in particular the arrest, detention, interrogation, and
trial of the accused. The code also covered the implementation of pun-
ishments, the temporary duration of imprisonment, and the differentia-
tion between the role of the police and prosecutors and the supervision
284 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

of their duties and responsibilities. It is not entirely clear whether this

new code was inspired by Soviet law. In any case, it signified the intro-
duction of a secular piece of legislation, which brought the Afghan legal
system closer to Western legal traditions.

1973-1978: The creation of the Republic of Afghanistan

On 17 July 1973, Mohammad Daoud Khan – the cousin of Zahir Shah
and his prime minister until 1963 – carried out a military coup with the
support of a small number of troops and a handful of military officers
associated with the PDPA while Zahir Shah was in Europe. For the first
time in its history, Afghanistan was proclaimed a republic. Meanwhile,
the communist party was increasingly influencing various parts of
Daoud’s government by pushing its own allies and supporters into key
administrative positions. This triggered opposition by the religious es-
tablishment and fostered the emergence of Islamic groups. Daoud
clamped down on these Islamist groups. In 1974, the leader of the
Muslim Brotherhood, Mohammad Niazai, was arrested along with
some 200 followers (Ewans 2001: 131). Determined to get public sup-
port for his government, Daoud decided to crack down on the commu-
nist parties as well.
Had Afghanistan’s ruler legalised the functioning of political parties
and political parties been institutionalised through periodic elections,
competition for power and influence could have taken place through
the ballot box. In the absence of institutionalised and democratic me-
chanisms for political change, however, the competition between leftist
and Islamic groups soon assumed the shape of armed conflict.
In 1976 a new penal code was enacted based primarily on Islamic
principles, but drawing also on European criminal codes.9 Article 1 of
the Penal Code of 1976 defines the scope of application and sets forth
as follows:

This law regulates offences that call for discretionary (taczīr) pe-
nalties. Any person who commits a crime calling for fixed pun-
ishment (h,add, pl. h,odūd) or retaliation (qes,ās,) or the payment
of blood money (diyat), will be punished according to the princi-
ples of the Hanafi school of law.

That meant that the h,odūd crimes were not within the scope of applica-
tion of the penal code. However, whenever a h,add crime could not be
established by Hanafi evidence law, the punishment for that crime
would fall within the scope of the 1976 Penal Code, if evidence was suf-
ficient vis-à-vis the standards set by the code. The penal code, thus,
SHARIA AND NATIONAL LAW IN AFGHANISTAN 285

provided for an alternative procedure, making h,odūd crimes punishable

under the principle of taczīr, with prison sentences of various durations.
The unstable legal situation led to the enactment of yet another con-
stitution on 24 February 1977.10 Daoud was elected president for a peri-
od of six years. The new constitution transferred all authorities of the
king under the 1964 Constitution to the president of the state. Daoud
also occupied the position of prime minister, foreign minister, and min-
ister of defence. The power over the judiciary, which until then had
been vested in the person of the king, was also transferred to the presi-
dent, and the position of Chief Justice granted to the Minister of
Justice.

The Constitution of 1977 differs considerably from the previous three

constitutions. Alongside the emphasis on Islam, the 1977 Constitution
introduced for the first time the notions of nationalism and socialism.
Article 22 of the 1977 Constitution designated Islam as the religion of
the state without reference to the prominence of the Hanafi school of
law, as had the previous constitution (1964). Article 64 went further
than the previous constitution, however, as it contains a repugnancy
clause, subjecting all laws to a process of assessment on their compat-
ibility with the basic principles of the sacred Islamic religion. Yet, in
other respects the law was more liberal. For instance, Article 28 re-
peated the principle of equality of gender, stating that: ‘[T]he entire peo-
ple of Afghanistan, both men and women without discrimination and
privileges, have equal rights and obligations before the law.’ The addi-
tion of the passage ‘both men and women’ was completely new and
had never been in any Afghan legal document so far. Articles 39 and
40 of the 1977 Constitution granted freedom of assembly for all citizens
of Afghanistan provided the assemblies are unarmed. A one-party sys-
tem led by Daoud’s party (the National Revolutionary Party) was created
by Article 40 of the 1977 Constitution. A national assembly called the
melli jirga replaced the former Parliament of the 1964 Constitution by
substituting the two houses (House of People and House of Elders)
with only one assembly (Art. 48 et seq.).
Also in 1977, the Afghan Civil Code (CC), modelled on the Egyptian
Civil Code of 1949, was enacted as a further piece of legislation aimed
at modernising the legal system.11 The code encompasses 2,416 articles
that regulate all aspects of civil law, including family and inheritance
law. The code blends sharia-based law (mainly in the field of family and
inheritance law) and modern secular law to solve the existing problems
and thereby secure social stability in society. The code was in particular
influenced by the French civil code, for example in matters regarding
the age of capacity for transactions and the requirement for registration
of documents concerning marriage, divorce, parentage, and kinship
286 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

(Art. 48 CC). To clarify the relationship between different sources of

law, Article 1 of the code provides that in cases where there is an explicit
regulation in the law, independent interpretation of the court (ejtehād) is
not allowed. However, if no such explicit rule exists, the court may fill
the gaps with the rules of the Hanafi school of law. Finally, the Civil
Code of 1977 did not allocate any role to customary law, despite its pro-
minent role in Afghanistan.

1978-1985: The Saur-Revolution, the mojāhedīn, and Soviet invasion

In April 1978, yet another coup, the so-called Saur-, or April-Revolution
(thavr), was staged by parts of the PDPA. Daoud and his family were
killed and power was handed over to a joint military-civilian
Revolutionary Council, with Taraki serving as its head, president, and
prime minister. The constitution was amended by a declaration the fol-
lowing day on 28 April 1978. All governmental affairs had to be exe-
cuted through decrees and procedures of the Revolutionary Council.
Decree No. 8/197812 implemented a stringent land reform, redistribut-
ing the land and severely limited the ownership of land. Any land con-
sidered as surplus was confiscated without compensation and redistrib-
uted to landless peasants and farmers. Modern Soviet type cooperatives
were designed to replace the traditional rural economic relationships.
In the field of civil law, on 17 September 1978 Decree No. 7 was pro-
mulgated. It abolished the bride price, or transfer of money from the
groom to the bride’s family, called walwar in Afghanistan (see 7.6); set
the minimum age for marriage at 15 and 18 for girls and boys, respec-
tively; and prohibited child and forced marriages.13
Meanwhile, Islamic resistance groups (the mojāhedīn movements)
had started to form themselves outside Afghanistan. After the arrest of
Niazai in 1974, some of his supporters, such as Hikmatyar and
Rabbani, had fled to Pakistan. In 1974, they had split away from the
main party, with Hikmatyar establishing the Islamic Party and Rabbani,
the Islamic Society party. Besides these two groups, numerous other
mojāhedīn movements were formed. These groups would later play a
central role in the resistance against the communist rule and against
the Russian military invasion (Magnus & Naby 2002: 151).
In 1979, internal conflicts within the PDPA escalated. Factional con-
flicts and the strong presence of the mojāhedīn movements in Pakistan
and inside Afghanistan persuaded the Russians to act. Basing them-
selves on the Soviet-Afghan Treaty of Friendship of 5 December 1978,
which allowed for military intervention by the Russians in the event of
any threat to their interests in the area, Russian troops invaded
Afghanistan on 27 December 1979. Karmal, the leader of the Parcham
SHARIA AND NATIONAL LAW IN AFGHANISTAN 287

party, mentioned above, was installed as head of the Democratic

Republic of Afghanistan.
Some 850,000 Afghan refugees had fled the country by May 1980,
with an estimated 750,000 Afghans applying for asylum in Pakistan
and an additional 100,000 in Iran (Ewans 2001: 158). The Russian inva-
sion was strongly condemned by the international community. Member
states of the Organisation of the Islamic Conference gathered in Saudi
Arabia and declared the invasion to be a threat to international peace
and stability. The U.N. General Assembly passed seven resolutions con-
demning the invasion, all without practical effect. In the meantime,
however, seven mojāhedīn opposition groups had come together in
Peshawar in Pakistan and merged into the so-called Afghanistan’s
Islamic Union of Mujāhedīn on 16 September 1981 (Ekhwan 2002: 15).
Meanwhile, in Kabul, Karmal was concerned with gaining internal le-
gitimacy among the Afghan people. He promised a government in
which all factions and parties would be embraced and represented; a
new constitution with provisions for elections and a multi-party system;
land reform; amnesty for returning refugees and political prisoners;
freedom of religion; and the establishment of Islamic institutions that
could act as advisory bodies to the government. To appease public opi-
nion, he restored the old black, red, and green national flag that was re-
placed after the Saur-Revolution by a flag without the green colour re-
presenting Islam.

On 21 April 1980, the fifth Afghan constitution was promulgated.14 It

contained 68 articles. In order to avoid a direct clash with public opi-
nion, the Constitution of 1980 did not explicitly mention communism
or Marxism in its provisions. Instead, it just pointed to the objectives,
views, policies, organisation, and responsibilities of various administra-
tive institutions in the government according to the PDPA program.
Article 54 of the 1980 Constitution upheld the institution of the
Supreme Court and reorganised the court system by providing for pro-
vincial and city courts, as well as special courts to try specific cases such
as military cases. In March 1980, the Law on the Organization and
Jurisdiction of the Courts was passed; it was amended less than two
years later on 22 December 1981.15 This law specified the court proce-
dure and set out the hierarchy of the courts. Articles 12 and 13 of this
law mandated the establishment of a bar association to ‘provide legal as-
sistance for the defence of accused persons’. Karmal also created a
Department for Islamic Affairs, which was to act as an advisory body
for the government on Islamic affairs.16
Despite these initiatives, the government continued to lose credibility.
This was particularly so given its rampant disregard of national and in-
ternational legal and human rights standards it purported to support
288 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

(e.g. ICCPR, CESCR, CERD, and CAT; see 7.9). During this period,
there were frequent human rights violations at the highest levels of
power, ongoing illegal detentions of political activists and religious lea-
ders, and the well-publicised executions of members of opposition
groups, in the absence of any trial or pretence of justice. In conse-
quence, Afghanistan became an area of instability in the region, ravaged
by internal conflict and foreign intervention. A March 1985 human
rights report prepared for UNCHR details accounts of deliberate bomb-
ing of villages, massacres of civilians, and execution of prisoners of war
belonging to resistance groups (Ermacora 1985: 12)
In the mid-eighties the war was particularly intense. The Afghan gov-
ernment, supported by Soviet troops, was involved in major combat all
around the country, with the government focusing all its attention on
its military campaigns rather than anything else. On 26 September
1982, the heads of the Islamic states conferring in Nigeria suspended
the membership of Afghanistan from the Organisation of the Islamic
Conference.
Foreign countries such as China, the U.S., Saudi Arabia, and Iran
considerably helped the resistance groups within and outside
Afghanistan. The alliance of the seven mojāhedīn groups, however, re-
volved only around their common struggle against the Russians and the
Kabul regime. Besides this, the resistance groups had little in common
and were involved in persistent factional disputes. From the very begin-
ning, they were as much prepared to cooperate with each other as to
fight each other. Neither their shared Muslim faith nor the concept of
the need for a holy war (jihād) to oust the Russians was strong enough
to outweigh their personal, tribal, and ethnic interests. All efforts to fos-
ter their commonness and bind them together into a unified movement
failed. This lack of unity meant that the mojāhedīn were unable to coor-
dinate their activities inside Afghanistan or carry out a unified strategy
for their common objectives. In fact, this was one of the main reasons
behind the unsuccessful attempts of the mojāhedīn to overthrow the
communist regime in Kabul.
In April 1985, Karmal held a Loya Jirga in Kabul, inviting 1,800 repre-
sentatives from around the country. With only 600 members attending,
the assembly failed to garner much legitimacy as a genuinely represen-
tative body. The elections of August 1985 were yet another unsuccessful
attempt by Karmal to legitimise his government (Ewans 2001: 165), as
was the creation of a National Reconciliation Commission that was to
design a new constitution. All his attempts to incorporate a broader par-
ticipation of the non-communist groups into his government failed.
SHARIA AND NATIONAL LAW IN AFGHANISTAN 289

7.4 The period from 1985 until the present

From civil war to democracy

1985-1992: Afghan civil war

In autumn 1985, the Russians replaced Karmal with Najibullah, who
was the head of the secret service department of the communist re-
gime. His instalment to power was a political decision aimed at creating
a stronger and more decisive government able to protect the continuity
and power of the communist regime, even after the eventual military
withdrawal of the Russians (Ewans 2001: 168). The international com-
munity’s efforts to put an end to the Russian occupation moved very
slowly, and no agreement had been reached so far. It was not until 28
July 1986 that the Soviet leader at the time, Gorbachev, facing heavy in-
ternational pressure, announced that the Russian troops would be with-
drawn, and that this withdrawal would be completed by October 1986.
In fact, Soviet troops only left Afghanistan on 15 February 1989. This
represented a great challenge for the communist regime in Kabul.
Najibullah had to stay in power without the support of the Soviet
troops. Towards the end of 1987 the government of Najibullah, in an ef-
fort to reconcile the conflicting parties, drafted a new constitution,
which was adopted on 29 November 1987 by the Loya Jirga.17 The new
constitution was similar to the Constitution of 1964 in its reference to
the sacred religion of Islam (Art. 2). According to Article 94 of the 1987
Constitution, eight different governmental institutions were given the
power to propose, introduce, amend, or repeal laws. The constitution
also introduced the Constitutional Council of Afghanistan as a supreme
institution for the interpretation of laws and international treaties in ac-
cordance with the constitution of the country. It was also to act as a con-
sultative body for the president in legislative matters.
In 1990, Najibullah called upon the Loya Jirga to ratify a new consti-
tution. In comparison to the two previous constitutions of 1980 and
1987, the 1990 Constitution did not make use of communist terminol-
ogy. Islam and nationalism were back on the front page.18 Article 1 pro-
claimed Afghanistan to be an ‘independent, unitary and Islamic state’.
Article 5 set forth provisions for a multi-party system. Article 25 gave
due attention to the private sector for the establishment of private enter-
prises, and Article 20 encouraged foreign private investment.
The PDPA was reformed and renamed the Homeland Party. In
November, Najibullah met with leaders of the mojāhedīn and representa-
tives of the former king Zahir Shah to seek a political solution to the
ongoing conflict. U.N. Secretary General Perez de Cuellar proposed
plans for an international consensus on a peaceful settlement in
290 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

Afghanistan in May 1991. It aimed at Afghanistan’s independence and

self-determination, a cease-fire, halting the flow of weapons into the
country, and a transitional mechanism leading to free and fair elections.
The Kabul regime, Iran, and Pakistan accepted the resolution. The alli-
ance of the seven mojāhedīn groups in Peshawar was, however, unable
to consent on the composition of the future government in
Afghanistan.
In this situation of negotiations, one of the strongest allies of the
Kabul regime, Dostum, an Uzbek who had control of some of the
northern provinces, seized the opportunity and joined forces with the
resistance militias of Ahmad Shah Massoud, a Tajik to take Mazaar-e
Sharif, the capital of one of the key provinces in the North of
Afghanistan. This move was the death warrant for the peace plan of the
United Nations and Najibullah’s regime. Some parts of the Kabul re-
gime joined ranks with the mojāhedīn. The advantage shifted decisively
in their favour. They believed that victory was theirs and saw no need to
stick to any U.N. peace plan that would include a role for Najibullah
and his supporters (Ewans 2001: 177).
On 18 March 1992, Najibullah resigned and accepted the formation
of a transitional government led by the mojāhedīn in close cooperation
with the United Nations, despite the fact that the resistance groups
were still struggling over power-sharing arrangements. Until then, the
civil war that was waged in fact between the different mojāhedīn groups,
rather than against communists, had been limited to some parts of the
country. After the collapse of the Kabul communist regime the armed
conflict spread into Kabul and the rest of the country. Government ad-
ministration, legal institutions, universities, schools, and all other edu-
cational and social institutions did not function any longer and were
simply closed down.

1992-2001: The Taliban and the rise of fundamentalism

The collapse of the Najibullah regime and the seizure of power by the
mojāhedīn symbolised the end of a functional state structure in
Afghanistan. A 51-member council called the Islamic Jihad Council
(shūrā-ye jihādī-ye eslāmī), consisting of thirty field commanders, ten
mullahs, and ten intellectuals, was established to rule the country for a
period of two months. The Council was succeeded by an interim gov-
ernment that held power for four months. The problems were enor-
mous: on the one hand, the new government had to deal with a state
apparatus that lacked legitimacy; on the other hand, the resistance par-
ties were not able to establish a functioning government. In the course
of the civil war almost all the state institutions had been looted or de-
stroyed (Ewans 2001: 181). The Ministry of Justice was used as a
SHARIA AND NATIONAL LAW IN AFGHANISTAN 291

military base, and all legal documents and laws stored at the ministry
were destroyed during the five years of mojāhedīn domination.19
No new constitution was drafted, nor had the constitution of the pre-
vious regime been repealed; not a single decree was issued during the
mojāhedīn rule to identify the sources of law for the judiciary and other
legal organs; no central legislative activities took place during this peri-
od of time; and there was uncertainty as to the applicable laws in all
fields (Lau 2003: 5). The difficulties were exacerbated by the ongoing ci-
vil war. This enhanced the rule of traditional law, i.e. classical Islamic
and customary law (especially the Pashtunwali, an ethical customary
code of the Pashtuns), since they represented the only continuity in the
country. In more remote areas, where statutory laws had never arrived,
the principles of Islamic and customary law had always been the primary
sources for the resolution of legal and social conflicts (Lau 2003: 4).
Afghanistan was more fragmented than ever when the Taliban, a
movement of indoctrinated students of Islam from the refugee camps
in Pakistan, emerged in 1994. As head of the government, Rabbani
controlled Kabul, its outskirts, and the North-East of Afghanistan. The
West (the province of Herat) was controlled by Ismael Khan. The East
(the Pashtun provinces) was under the leadership of an independent
group of mojāhedīn commanders in Jalalabad, who occasionally fought
against each other. A small region south and east of Kabul was con-
trolled by Hekmatyar. The northern six provinces were under Dostum’s
command. And, finally, the Hazaras controlled the province of Bamian.
Furthermore, dozens of warlords and leaders of militia groups exercised
their control and harassed the population throughout the country
(Rashid 2000: 21). Even international aid organisations feared entering
Afghanistan, as the country was drowning in a savage civil war.
The successful expansion of the Taliban movement saw them control
almost ninety per cent of the country by 1998. This, however, did not
lead to the reestablishment of a strong state. The government activities
of the Taliban were limited to the provision of security by incorporating
local combatants into their own military structure and to the introduc-
tion of a bizarre and harsh version of Islamic law, with implications in
all areas of law, such as public executions and a vigorous application of
the h,odūd punishments (Schetter 2002: 113).
An announcement on Radio Kabul on 28 September 1996 stated that
‘thieves will have their hands and feet amputated, adulterers will be
stoned to death and those drinking alcohol will be lashed’. TV, video,
satellite dishes, music, and games, including chess and football, were
pronounced un-Islamic (Rashid 2000: 50). The Taliban also established
a Department for the Promotion of Virtue and Prevention of Vice
(amr bi-l-macrūf va nahī-ye an-al-monkar) that was given unlimited
authority for the enforcement of all the decrees issued by the Taliban
292 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

government.20 A decree issued in 1997 by Mullah Omar, the founder of

the Taliban movement, declared that all the laws against the principles
of Hanafi Islamic jurisprudence were not applicable.21 The Taliban an-
nounced via the radio that after the seizure of Kabul, they would abolish
all the laws and regulations of the communist regime and reintroduce
the system of law that was in place during Zahir Shah’s reign (1964-
1973), with the exception of the provisions related to the king and the
monarchy.
They also claimed to support the principles of representative, non-dis-
criminatory government based on the principles of the sharia (Ewans
2001: 205). That never happened; the Taliban regime violated all princi-
ples of the Constitution of 1964. Throughout their rule, the Taliban exe-
cuted h,̣add and qeşāş punishments that had not been applied in the re-
cent legal history of Afghanistan. The option of paying blood money to
the victim’s family in lieu of corporal punishment was not used very of-
ten. Amputation of hands and feet for theft and stoning of adulterer
and adulteress were executed. The Taliban meant to deter people from
committing crime and, therefore, ordered executions and amputations
to be held in public in the sports stadium of Kabul.

One of the Taliban’s first acts was the execution of former president
Najibullah who had been living on U.N. premises since 1992. There
was no trial, and the public display of Najibullah’s dead body revolted
many people outside and within the country.
Under the Taliban, discrimination against women peaked. They is-
sued numerous edicts to control literally every aspect of women’s beha-
viour, in both the public and private spheres. They were forbidden to
take employment, to appear in public without a male relative, to partici-
pate in government or public debate, and to receive secondary or higher
education. As a result, women were deprived of the means to support
themselves and their children. Only female doctors and nurses were al-
lowed – under strict observation of the religious police – to work in hos-
pitals or private clinics. These edicts were issued by the abovemen-
tioned Department for the Promotion of Virtue and the Prevention of
Vice and enforced through summary and arbitrary punishment of wo-
men by the religious police.
The Taliban claimed that they were prepared to provide for education
and employment opportunities for women as soon as the social and fi-
nancial circumstances were convenient. Unfortunately, such conditions
for a sound Islamic program for women were never ascertained, with
some subsequently claiming that such program had never existed in
the first place.
The Taliban received support in the form of donations from foreign
sponsors, located mostly in Saudi Arabia, Pakistan, and the United
SHARIA AND NATIONAL LAW IN AFGHANISTAN 293

States. New recruits from the religious schools (madāres) located in

Pakistan were urged to join the Taliban movement to fight against the
mojāhedīn groups in the North of the country. On 20 March 1996, more
than 1,000 religious scholars and tribal leaders gathered in Kandahar to
discuss the policies and platforms of the Taliban regime for the future.
On the 4th of April, the assembly ended with the announcement of a
jihād against the Kabul government still run by the mojāhedīn groups.
Mullah Omar was named ‘Commander of the Faithful’, a title once
abolished by the reformer-king Amanullah (Ewans 2001: 195).
In May 1996 Osama bin Laden, whose Saudi Arabian citizenship
had been revoked in 1994, arrived in Jalalabad. He had been travelling
to the Pashtun border areas between Pakistan and Afghanistan since
the early eighties, where he had established training camps for the re-
sistance forces against the communist regime. He cooperated with the
Taliban who offered him their protection. Bin Laden provided the
Taliban with extensive financial and human resources. After the bomb-
ing of the U.S. embassies in Kenya and Tanzania in 1998, Bin Laden
became the world’s most wanted terrorist. The Clinton Administration
responded to the bombings of their embassies with cruise missiles di-
rected against training camps that had been run by Bin Laden in
Afghanistan since 1981. Ironically, these camps had at an earlier point
in their history been supported by the U.S., Saudi Arabia, and Pakistan
for training Afghan opposition soldiers to fight the Soviet occupiers.
With the assassination of Massoud on 9 September 2001 and the at-
tacks of 9/11 in the U.S., the situation changed dramatically. The Bush
Administration held Bin Laden responsible for the terrorist attacks of
9/11 and accused the Taliban of sheltering him. Consequently, starting
on 7 October 2001, the United States began air strikes against the
Taliban as part of a campaign aimed at putting an end to the rule of the
Taliban regime, an objective that was soon achieved. This was done os-
tensibly in support of the so-called Northern Alliance of the mojāhedīn
groups, since the Taliban regime had only been internationally recog-
nised by Pakistan, Saudi Arabia, and the United Arab Emirates.

2001-present: Democracy and the future of Afghanistan

On 27 November 2001, a conference was held in Bonn, Germany,
which brought together representatives of the resistance groups, con-
sisting of the main civil war parties and warlords, pro-Zahir Shah tech-
nocrats and intellectuals, and two other small Afghan groups based in
Pakistan and Iran (Wardak 2005: 65). Although the present anti-Taliban
groups could not be considered to represent the Afghan people, the
‘Agreement on Provisional Arrangements in Afghanistan pending the
Re-Establishment of Permanent Government Institutions’, also known
294 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

as the ‘Bonn Agreement’, provided a framework for the process of state

formation to create a broad-based, multi-ethnic, and representative gov-
ernment in Afghanistan. Executive powers were vested in Hamid Karzai,
a Pashtun, as head of the Interim Administration of Afghanistan on 22
December 2001. Karzai was reconfirmed as the head of the Interim
Administration by the 1,550 members of an Emergency Loya Jirga held
in Kabul on 10 June 2002.
On 14 December 2003, a nine-member commission presented a new
draft constitution to the Constitutional Loya Jirga, the constitutional as-
sembly, for the new Afghan Republic. The text of the constitution had
been drafted following public consultations that took place over a period
of several months. After almost three weeks of heated debates, the Loya
Jirga approved the new constitution; it was signed on 26 January 2004
by Karzai. This cleared the way for the restoration and implementation
of the rule of law, and hopes were expressed for an imminent end to
the power of the warlords and the anarchy gripping the country (see
7.5).
The Bonn Agreement set June 2004 as the target date for the forma-
tion of a fully representative and elected Afghan government. However,
that timeframe was repeatedly changed. When on 31 March 2004, the
second international conference on Afghanistan’s future took place in
Berlin (‘the Berlin Conference’), a work plan was issued for the Afghan
government to hold free and fair elections in autumn 2004. Prior to
the elections, the full exercise by citizens, candidates, and political par-
ties of their political rights under the 2004 Constitution was to be en-
sured. These rights included, among others, freedom of organisation,
freedom of expression, and the principle of non-discrimination, as well
as paying particular attention to the participation of women as both vo-
ters and candidates. In the end, the decision was taken to hold presi-
dential elections in October 2004, delaying parliamentary, provincial,
and district voting until April 2005 (International Crisis Group 2005).
Thus, the first presidential elections in Afghanistan were held on 9
October 2004. According to U.N. officials, nearly 10 million voters were
registered in the country. Since no census of Afghanistan has ever been
taken, it is not possible to know how many eligible voters there actually
were. Nearly 42 per cent of the registered voters were women, but it
should be noted that that figure dropped to less than ten per cent in
some provinces in the southeast. In addition, over one million Afghan
refugees in Pakistan and Iran were registered to vote in the elections.
Amongst seventeen challengers (including a female physician), the in-
terim president Karzai was elected and sworn in as first elected Afghan
president on 8 December 2004.
SHARIA AND NATIONAL LAW IN AFGHANISTAN 295

The first parliamentary elections in 36 years in Afghanistan, scheduled

for April 2005, were finally held on 18 September 2005, with 2,800
candidates running for the 249 seats of the Lower House, among
whom were 344 women. In contrast to the 80 per cent turn out rate for
registered voters during the presidential elections, reports indicate that
only about 50 per cent of the 12.4 million registered voters cast their
vote during the parliamentary elections.22
A new Electoral Law with 57 articles, adopted on 27 May 2004, regu-
lated the conduct of elections. Article 20 of the law provides for a sin-
gle, non-transferable vote (SNTV) system under which candidates may
run either individually or be nominated by a party. Under this system,
party lists are not admitted.23 Political parties may endorse or nominate
candidates, but they are not allowed to use party symbols on the ballot,
making it difficult for voters who wish to vote along party lines to iden-
tify their chosen candidates on Election Day. It must be noted that poli-
tical parties have a serious credibility problem in Afghanistan. They are
often associated, on the one hand, with the Communist Party and the
Soviet invasion and, on the other hand, with the Islamist military
groupings who formed to fight the Soviets and whose infighting pro-
duced much of the instability and bloodshed of the 1990s.
Consequently, many Afghans do not trust political parties and see them
as pursuing self-interested policies for their particular ethnic group,
clan, or tribe. This is one of the primary reasons the SNTV system,
which allows for a focus on individuals rather than parties per se, was
chosen for use in the first elections in Afghanistan after so many dec-
ades of strife (Reynolds & Wilder 2005: 9).
The SNTV has, however, been criticised as being ill-suited for a coun-
try like Afghanistan. According to international observers, to be success-
ful under this type of voting structure, a party must have sufficient con-
trol over its support base in each contested district to instruct it how to
allocate votes among the party’s candidates. Otherwise, the party risks
having too many votes cast for one candidate, beyond the minimum
needed for election, and too few for others. A system that encourages
party development and participation in the political process would have
been more desirable given Afghanistan’s nascent democracy
(International Crisis Group 2004).
As in the past, the 2004 Constitution provides for two houses in the
Loya Jirga. The Lower House (the Wolesi Jirga) has 249 seats, with
members directly elected by the people. Each of the 34 provinces is a
single constituency in the Wolesi Jirga. Ten seats are reserved for the
Kuchi (nomads) community (Electoral Law, §2, Art. 20), with the re-
maining 239 seats distributed among provinces in proportion to their
population, with each province having at least two seats. Each member
of the Wolesi Jirga enjoys a five-year term expiring on the 22nd of June
296 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

of the fifth year (2004 Constitution, Art. 83). Mohammad Yunos

Qanuni, the former Minister of Interior and Education, was elected
head of the Lower House.
The Upper House (the Meshrano Jirga) consists of a mixture of ap-
pointed and elected members (total 102 members). Sixty-eight members
were selected by the 34 directly elected provincial councils, and another
34 were appointed by President Karzai (Art. 84, 2004 Constitution).
President Karzai’s appointments were vetted by an independent U.N.-
sponsored election board and included seventeen women (50%), as re-
quired by the constitution. Sebghatulla Mojadeddi was appointed
President of the Meshrano Jirga by President Karzai.

The new National Assembly has the potential to play a vital role in stabi-
lising Afghanistan, institutionalising political competition and giving
voice to the country’s diverse population. By being accountable to the
Afghan people, it can demand accountability of the presidential govern-
ment. However, the success of this institution remains delicately
poised, particularly because of the absence of a formal role for political
parties, essential for mediating internal tensions.
Meanwhile, at the London Conference on 31 January–1 February
2006, donor nations pledged to help rebuild Afghanistan over the next
five years with a sum of 10.5 billion dollars (equivalent at the time to
8.7 billion Euros). Some 80 per cent of this amount represents new
money, with the remainder made up of outstanding portions of earlier
pledges.24 The key elements of the so-called Afghanistan Compact set
out specific targets for improving security, governance, the rule of law
and human rights and for enhancing economic and social development.
A further vital and cross-cutting area of work is eliminating the narco-
tics industry, which remains a formidable threat to the people and state
of Afghanistan, the region, and beyond.
At the Afghanistan Conference in Rome in July 2007 international
donors pledged to support the training of judges, the building of new
prisons, and the enactment of other measures to strengthen
Afghanistan’s judicial system with an additional 360 million dollars.
President Karzai told the conference that urgent priorities included low
salaries, poor infrastructure, and the training of personnel.
However, the security situation has deteriorated in the past several
years. According to a report by the United States Institute of Peace, the
year 2009 was the most violent on record for Afghans and international
forces since 2001, and Afghan and international public confidence is di-
minishing.25 Contrary to their pledge in 2007, the Afghan government
and its international allies are mainly focused on two issues, namely
combating corruption within the Afghan government and resolving the
ongoing conflict with the Taliban. All other issues have become
SHARIA AND NATIONAL LAW IN AFGHANISTAN 297

secondary. The lack of security, economic development, effective rule of

law, and coordination of efforts will, however, always stand in the way
of sustainable progress in the country. As these problems are interre-
lated, none of them can be tackled without simultaneously addressing
the others.
On 1 December 2009 the Obama administration announced that the
U.S. would send another 30,000 troops to Afghanistan, but also start
withdrawing troops as per July 2011. It is unclear whether such an in-
crease in troop presence will boost security in Afghanistan, if no serious
attention is given to the promotion of the rule of law, development, in-
stitution-building, and economic growth.

The presidential election of 20 August 2009 is another illustration of

the growing instability in Afghanistan. With more than 40 presidential
nominees, about 5 million people cast their votes.26 The outcome of the
election was marked with fraud and voting irregularities; no single can-
didate managed to obtain 51 per cent of the total votes. As the allega-
tions of widespread fraud gained ground, a runoff election was sched-
uled to take place on 7 November 2009. On 1 November 2009,
Karzai’s main challenger Abdullah pulled out of the runoff election.
Karzai, who won 49 per cent of the total votes in the first round of the
election, was thus announced the elected president by the Independent
Election Commission of Afghanistan. Although the election was over,
the irregularities and fraud connected to the election process raised
doubts about the legitimacy of the government. The reappointments of
Dostum as Army Chief of Staff and Qahim as First Vice President, two
prominent warlords accused of human rights violations and war crimes,
further increased concerns about Karzai’s government and his
leadership.
On 28 January 2010 the latest Afghanistan Conference took place in
London. The conference was meant to bring together the international
community to ‘fully align military and civilian resources behind an
Afghan-led political strategy’.27 A radical increase of civilian and mili-
tary security forces is planned with the aim of reaching 171,000 mem-
bers in the Afghan Army and 134,000 Afghan policemen by the end of
2011, bringing thus the total security force numbers to over 300,000.
Furthermore, measures were announced to tackle corruption, including
the establishment of an independent Office of High Oversight and an
independent Monitoring and Evaluation Mission. According to agree-
ments made at the conference, development assistance shall be better
coordinated in the future, with the aim of increasingly channelling
funds through the Government of Afghanistan. Interestingly, the strat-
egy of the international community on Afghanistan embraces also the
policy of the Afghan Government to integrate ex-warlords by offering
298 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

economic incentives to those who ‘renounce violence, cut links to ter-

rorism and agree to work within the democratic process’.
Meanwhile, the parliamentary elections planned for May have been
postponed until September 2010. The election commission cited several
reasons for its decision: security concerns, logistical challenges, and a
budget shortfall, to name a few. The postponement of elections was
hailed by Western donors, as it allows more time to put election re-
forms in place in order to avoid the repeat of the widespread fraud that
marred the 2009 presidential elections. The postponement may also
give the electoral institutions additional time to carry out the necessary
preparations for the elections and to make improvements to the elector-
al process based on lessons learned during the 2009 elections.

7.5 Constitutional law

The Constitution of 200428 proclaims in its very first article that

‘Afghanistan is an independent, unitary, and indivisible Islamic republi-
can state’. Article 3 contains a repugnancy clause stating that ‘In
Afghanistan, no law may be contrary to the beliefs and provisions of
the sacred religion of Islam. (‘mokhālef-e moctaqedāt va ahkām-e dīn-e
moqaddas-e eslām’). This is not new, since all Afghan constitutions, ex-
cept for the 1980 Constitution, contained such a clause. This version of
the constitution, however, fails to define what is to be understood as the
‘beliefs and provisions of the sacred religion of Islam’ or what the ex-
pression ‘Islamic republican state’ encompasses.
Article 130 of the constitution in fact stipulates the priority of statu-
tory law over Islamic law, noting that ‘The courts shall apply this
Constitution and other laws when adjudicating cases’. The article
further reads:

When no provision exists in the constitution or the law for a

case under consideration, the court shall, by following the prin-
ciples of the Hanafi School of law and within the limitations set
forth in this constitution, render a decision that secures justice
in the best possible way.

It is, however, not clear whether these constitutional postulates imply

that the ethical values of Islam govern the interpretation of the laws, or
that the constitution and state-enacted law set the framework within
which Islamic law must operate (Yassari 2005: 48).
Closely linked to these questions is the question as to who is to inter-
pret the constitution. The proposal to establish a genuine ‘Supreme
Constitutional Court’ was rejected in the drafting process of the 2004
SHARIA AND NATIONAL LAW IN AFGHANISTAN 299

Constitution. Consequently, the constitution, as it is currently formu-

lated, foresees two distinct institutions with competence in interpreta-
tion matters. In the first place, Article 157 sets forth that an
‘Independent Commission for the Supervision of the Implementation
of the Constitution’ should be created. Yet, according to Article 121, it is
the Supreme Court that has the competence to ‘review laws, legislative
decrees, international treaties and conventions on their compliance with
the Constitution and to interpret them, in accordance with the law […]’.
This constitutionally instituted dichotomy may cause serious problems
in the future (Yassari 2005: 49). However, as an Independent
Commission for the Supervision of the Implementation of the
Constitution was never established, this problem is not acute and the
task of interpreting and supervising the implementation of the constitu-
tion is conducted by the Supreme Court.
While articulating that ‘Islam is the sacred religion of Afghanistan’,
Article 2 of the 2004 Constitution also asserts that followers of other re-
ligions are free to exercise their faith and perform their religious rites
within the limits of the law. Furthermore, Article 130 sets forth that
with reference to cases under court consideration, if no relevant statute
is found the Hanafi school of law is to be utilised to the exclusion of all
the other schools of Islamic jurisprudence. However, a new develop-
ment in this constitution is the recognition, for the first time, of Shi’i
law as a source of law to be used in cases where Afghan Shi’i are in-
volved. Article 131 of the Constitution provides:

In cases involving the Shi’i followers, the court shall, in disputes

concerning personal status matters, apply the Shi’i school of law
in accordance with (statutory) law. In other disputes, where no
provision can be found in this Constitution and other laws, the
courts shall adjudicate the case in accordance with the rulings of
the Shi’i school of law.

It should be noted that in the first part of the article, the constitution
makes explicit reference to matters of personal status, as opposed to
other areas of the law, such as criminal and constitutional law. The lat-
ter portion of the same article, however, offers some freedom of inter-
pretation, as it provides that whenever both parties to a legal dispute
(other than in matters of personal status) are Shi’i followers and no rul-
ing can be found on the basis of legal standards articulated in the con-
stitution or other statutes and acts, the judge may apply the rules of the
Shi’i school of law. Thus, whenever existing statutes, such as the civil
code, do apply the scope of application, Shi’i law is excluded (Kamali
2005: 30).
300 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

In response to Article 131 of the 2004 Constitution a Code of

Personal Status of Shi’i Afghans was promulgated in July 2009.29 This
law had been quietly making its way through Afghanistan’s parliamen-
tary system since 2007, when President Karzai finally signed the bill in
March 2009, with the intention to gain the support of the Shi’i minor-
ity for the August 2009 election, without however paying attention to
its content and potential backlash. Whereas there was generally a con-
sensus among Afghans that the law as such was a positive develop-
ment, giving rights and recognition to a historically excluded and perse-
cuted minority, the content of some provisions of the bill that included
several restrictions on the rights of Shi’i women caught the attention of
national Afghan and international human right groups and the interna-
tional media, causing the law to soon be dubbed the ‘rape law’ by
Western journalists. Although the law had been circulated and shared
with some local authorities and members of the civil society, it had re-
ceived minimal public debate. According to a report of the Afghanistan
Research and Evaluation Unit, the process of law making had lacked
any public participation; this has revealed the weak links between pol-
icymakers and their constituents. It also showed a continued emphasis
on ethnicity, sect, and faction as a basis for political alliances and orga-
nisation, rather than on partisan platforms that speak of issues of public
interest (Oates 2009: viii). After strong public reactions, the bill was
amended and some of the contested provisions, such as the rules on
temporary marriage, were omitted; the amended Code of Personal
Status with its 236 articles came into force on 27 July 2009 (see 7.6).

The 2004 Constitution requires the head of state to be a Muslim. He is

the patron of the religion of Islam and, as such, must protect the ‘basic
principles of the sacred religion of Islam, and the constitution and other
laws’ of Afghanistan (Art. 63). The constitution has, however, omitted
in this regard a reference to the Hanafi school of law, meaning then
that there is no requirement that the president be a follower of the
Hanafi doctrine. The article further prescribes that the president, unlike
the construction of the king under Article 15 of the 1964 Constitution,
is not beyond accountability. Article 69 expands upon this principle in
its articulation of the impeachment procedure and removal from office
of the president when he is charged with treason, crimes against
humanity, or any other serious crime.
Article 116 foresees a three-tier court system with a Supreme Court,
appeals courts, and district courts. The constitution does not, however,
give detailed rules on the structure of the courts. According to Article
123, the rules related to the structure, authority, and performance of the
courts and the duties of judges shall be regulated by statutes.
SHARIA AND NATIONAL LAW IN AFGHANISTAN 301

In January 2005, a temporary Supreme Court of Afghanistan was es-

tablished. President Karzai appointed nine judges to the court, all of
them Islamic scholars, including one Shi’i scholar. Fazl Hadi Shinwari,
an Islamic scholar known particularly as being ultra-conservative was
appointed as Chief Justice. The temporary Supreme Court operated un-
til the parliamentary election in September 2005 and the formation of a
new Loya Jirga. In summer 2006, President Karzai appointed several
new, more moderate members to the Supreme Court. However, he also
chose to re-nominate Shinwari as Chief Justice. Despite controversy sur-
rounding the validity of Shinwari’s legal credentials, his nomination
was allowed to continue, but ultimately failed when voted on in
Parliament. Karzai then chose his legal council, Abdul Salam Azimi, to
succeed Shinwari. Azimi’s nomination passed, and the new court was
sworn in on 5 August 2006.
With regard to women’s rights, the Constitution of 2004 contains an
equality clause. According to Article 22,

[a]ny kind of discrimination and privilege between the citizens

of Afghanistan is prohibited. The citizens of Afghanistan –
whether man or woman – have equal rights and duties before
the law.

While the express wording of this article forbids discrimination be-

tween men and women, legal rules contained in the Civil Code 1977
and the Penal Code 1976 (see 7.6 and 7.7) as well as actual social prac-
tice, in particular in accordance with customary law, do. The equality
clause must, thus, be seen as an article that had to be included in any
modern constitution, but one that does not reflect the way women and
their position in society are conceived in male-dominated and war-ra-
vaged Afghanistan. It remains highly doubtful that women will be able
to successfully rely on this article for the protection of their rights in
the foreseeable future.

7.6 Family and inheritance law

The current Afghan Civil Code dates back to 1977; it contains provi-
sions on family and inheritance law that are essentially a codification of
the Hanafi school of law, with inclusion of some provisions of the
Maliki school of law. Family law provisions cover matrimonial law, poly-
gamy, child custody, and divorce. The enactment of the Civil Code con-
stituted a step forward from its antecedent, the Marriage Law of 1971,
which was silent on polygamy. Moreover, its provisions on child mar-
riage and divorce did not match any of the family law reforms that had
302 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

taken place elsewhere in the Middle East, the Maghreb, and Pakistan in
the 1950s and 1960s. In contrast, the Civil Code of 1977 introduced re-
forms on child marriage, polygamy, and divorce. These amendments
(see discussion below) do not, however, sufficiently address the social
need for more effective measures, and they do not further either the
equality clause contained in Article 22 of the 2004 Constitution or the
principles outlined in the CEDAW to which Afghanistan is a signatory.
An enormous gap exists between the professed support for the prin-
ciple of equality and the reality of tribalism in Afghanistan’s traditional
society. The importance and prominence of customary law, and espe-
cially the customs and principles that are known collectively as the
Pashtunwali, which enjoy quasi-legality and apply to virtually every as-
pect of daily life, should not be underestimated. These rules pertain
mostly, but not exclusively, to the commission of crimes, especially
those committed against persons and/or property (International Legal
Foundation 2004: 7). Such conflicts are primarily resolved by an ex-
change of women from the family of the perpetrator of the crime to the
family of the victim. Women involved in this exchange (bad or badal) do
not have any say.
Custom-based and traditional attitudes towards women are difficult
to change. Many women in Afghanistan cannot even hope to dream of
enjoying something even resembling equal rights, despite the fact that
the twentieth-century constitutions all boldly proclaim the opposite.

Marriage
The Civil Code of 1977 accords women the right to choose a husband
without the prior consent of their guardian, in accordance with the
Hanafi school of law. With reference to child marriage, Articles 70 and
71 of the Civil Code specify a marriageable age of eighteen for boys and
sixteen for girls, but dilutes in the meantime the effect of its own provi-
sion by providing that a ‘valid marriage contract may be concluded by
the contracting parties themselves, or by their guardians and represen-
tatives’ (Art. 77 CC). The law, thus, falls short of addressing abusive ex-
ercise of the power of guardianship whereby parents, brothers, and un-
cles often impose their will on minor, and even adult, boys and girls.
More recently, the Supreme Court has approved of a new standardised
marriage contract (nekāh-nāme), with the explicit aim of curbing forced
and child marriages. It remains to be seen whether in absence of any
sanction people will abide by it. This will also depend on the observance
of the requirement of registration.
The 1977 Civil Code introduced a registration requirement for all
marriages. According to Article 61 every marriage has to be registered.
The competent body for the registration of marriages is currently the
SHARIA AND NATIONAL LAW IN AFGHANISTAN 303

district court of the area where the parties reside.30 However, according
to Afghan officials and current reports, in most parts of the country,
marriages are neither certified nor registered. Only 5 per cent of the
marriages have been registered (Ertürk 2006: 8). This means that the
vast majority of Afghans are not officially registering their marriages.
The registration of births, marriages, divorces and deaths are indispen-
sable for determining the population number and ensuring legal secur-
ity in a modern state. Due to the lack of reliable registration, it is not
possible to collect statistics with regard to the marriage of minors for
example. Likewise, in marital disputes, due to the lack of official docu-
ments, it is hard to prove the existence of a marriage.
The lack of registration is partly explained by the fact that non-regis-
tration does not affect the validity of the marriage: a marriage is consid-
ered religiously valid without registration. The participants of a work-
shop on family law, conducted by the Hamburg Max Planck Institute
for Private Law (MPI) in 2006 in Kabul,31 argued that a further reason
why people do not register their marriages is their distrust in courts.
Accordingly, it is against the Afghans’ way of thinking, habits, and tradi-
tions to begin their marital life by going to a court, even if it is only in
order to register the marriage. The other reason for not registering mar-
riages is the fact that there is no need for it in daily life. Presenting cer-
tified documents is rarely necessary in Afghanistan. Thus, a simple but
effective method for promoting registration would be a compulsory pre-
sentation of the marriage certificate to employers and landlords. For
this purpose, trustworthy, extrajudicial registration authorities should
be set up all over Afghanistan.

A further important issue in marriage law is the so-called bride price

(walwar)32, which has to be differentiated from the Islamic dower
(mahr).33 Walwar is a customary tradition whereby the groom or his fa-
mily has to pay to the head of the bride’s household a sum of money
(or commodity) supposedly to reimburse the parents of the bride for
the financial loss they suffered while raising their daughter. Walwar ori-
ginates in the tribal tradition of Afghanistan, and viewed from the
Pashtun perspective, it is a matter of honour: the higher the walwar, the
higher the esteem of the husband’s family for the bride. Some have ar-
gued that the concept of walwar is wrongly considered as ‘selling girls’,
since this view ignores the socio-cultural background of the institution.
The idea underlying walwar is to provide some financial relief to the
girl’s parents who purchase gold and silver ornaments, clothes, house-
hold utensils, etc. as dowry for their daughters. However, even if the
dowry may be paid for out of the walwar, this is not a legal or customary
obligation; walwar very often does not benefit the girl’s family nor does
304 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

it flow into the expenses for the wedding ceremony, also paid for by the
family of the groom (Kamali 1985: 85).
The amount of commodities or money acceptable as walwar differs
from province to province, as do the social attitudes with regard to this
practice. In the 1980s, Kamali recorded amounts varying between
20,000 and 200,000 Afghanis depending on the geographic areas; a
uniform figure could not be given. Likewise, a report conducted by the
abovementioned Hamburg MPI in 200534 revealed equally variable
amounts of payment of walwar. Data revealed, for instance, that the wal-
war for a virgin girl ranged from 2,000 U.S. dollars (about 85,000
Afghani) to 40,000 U.S. dollars (1,700,000 Afghani) for the first mar-
riage of a girl. This amount might be even higher if the man was al-
ready married; it would double for the third marriage and increase
further for the fourth marriage. It is important to add that the amount
of walwar can also vary according to chastity, beauty, education, and the
social class or economic standard of the girl and her family.
The need to purge the Afghan way of life of this tradition detrimental
to society at large has been strongly felt. Accordingly, walwar has been
prohibited in all family law legislation prior to the Civil Code of 1977.
The Marriage Law (1921) explicitly forbade the practice of walwar, as did
its successor, the Marriage Law of 1926. Both statutes failed, however,
to specify any means of enforcement or sanction in case of infringe-
ment. The Marriage Law of 1949 contains similar provisions.
According to its Article 5, the bride is denied any further gift (including
walwar) in addition to her dower. Article 6 provides the groom with
some means of action and stipulates that the government is authorised
to take action in a situation where, after the completion of a valid mar-
riage, the guardian of the bride refuses to allow the bride to join her
husband because of his refusal to pay extra money. This provision, how-
ever, had hardly a scope of application since normally the bride price is
to be paid before the conclusion of the marriage (Kamali 1985: 87;
Tapper 1991: 144).
Subsequent legislation repeated the prohibition of walwar (so Art. 15
of the Marriage Law 1971), but as its predecessors, the Marriage Act
1971 failed to specify the competent court to hear cases on the matter,
the penalties involved, or the way the violator should be prosecuted.
The absence of sanctions made Article 15 inapplicable in practice. The
intention of the legislator to eliminate walwar did not include any effec-
tive measure for the enforcement of the prohibition or sanctions for
violation. The civil code also does not address the issue, thus failing to
tackle one of the most burning issues in Afghan legal reality. With no
effective measure to sanction its breach, the practise is still widespread
in Afghanistan today.
SHARIA AND NATIONAL LAW IN AFGHANISTAN 305

In a country suffering from widespread poverty and unemployment this

institution must be reconsidered in view of the fact that many men can-
not afford it and are forced to sell their land or travel abroad to earn
money for it (Yassari 2005: 58-59). Ironically, economic reasons also
play a significant role in the persistence of walwar. The girl child can
become an asset exchangeable for money or goods. Families see com-
mitting a young daughter (or sister) to a family that is able to pay a high
price for the bride as a viable solution to their poverty and indebted-
ness. The custom of walwar may motivate families that face indebted-
ness and economic crisis to ‘cash in’ the ‘asset’ as young as six or se-
ven, with the understanding that the actual marriage is delayed until
the child reaches puberty. However, there is no guarantee that this is
really observed and some reports indicate the danger of little girls being
sexually abused not only by the groom but also by older men in the fa-
mily, particularly if the groom is also a child (Ertürk 2006: 8).

Polygamy
The civil code confirms the validity of polygamy, but makes it contin-
gent on conditions such as just character of the husband, his financial
ability to maintain more than one wife, existence of a lawful reason,
and consent of the new wife (Art.s 86, 89 CC). Polygamy remains per-
missible under the requirements of Article 86 of the Civil Code, which
reads as follows:

Polygamy can take place when the following conditions are ful-
filled: 1) when there is no fear of unequal treatment as between
the wives; 2) when the husband has sufficient financial means
to maintain his wives. This includes food, clothing, housing and
adequate medical care; 3) lawful reason, such as the first wife re-
maining childless or her suffering from diseases that are diffi-
cult to cure.

Since judicial permission prior to a polygamous marriage is not re-

quired to certify that the husband has indeed fulfilled these require-
ments, these provisions are not likely to be very effective. Judicial inter-
vention is only possible after the polygamous marriage has been con-
cluded. Consequently, when an Afghan man enters a polygamous
marriage, violating any of the legally prescribed conditions, the second
marriage will be valid (Ertürk 2006: 11). It will only give the wife (be it
the first or the second) a right to judicial divorce on the basis of harm
(ḍarar, see below) in cases where the husband failed to fulfil the stipu-
lated conditions (Art.s 87, 183 CC).
306 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

These rules, once again, fail to address the social realities of

Afghanistan, placing the burden of proof entirely on the wife. It is extre-
mely difficult for an Afghan woman to prove that her husband is unjust
and has inflicted injury on her. The current legislation cannot, there-
fore, be considered a real remedy for the difficulties Afghan women
face. Since polygamy in the Afghan society is considered to be less of a
social stigma than divorce, divorce is very rare and discouraged by so-
cial pressure. Moreover, it is questionable whether the entitlement to di-
vorce is a real option to many Afghan women. In many cases, a woman
may prefer putting up with the polygamous marriage of her husband,
rather than to petition for a divorce that would likely leave her without
financial means.

Divorce
Until the introduction of the Civil Code in 1977, divorce was exclusively
governed by Hanafi law. Any legislation that addressed the subject prior
to this time was of a piecemeal nature and essentially left the sharia law
intact. The civil code, thus, represents the first attempt to comprehen-
sively codify the sharia law of divorce. It provides for four types of mar-
riage dissolution:
– First, there is the repudiation of the wife by the husband (t,alāq).
The provisions of t,alāq are codified in Articles 135-155 of the civil
code and reflect the Hanafi rules. Under the code the husband’s
unilateral right to divorce, without giving any reasons and without
recourse to the courts, has been retained. The husband’s may pro-
nounce the t,alāq verbally, in writing, or even by gesture (Art.s 139,
135 CC). Witnesses are not required and the repudiation does not
need to be registered. The code is completely silent on that matter.
The possibility of the husband to divorce his wife with no further
formalities causes a permanent legal insecurity for the women as to
their marital status.
– The second form of divorce is the judicial divorce initiated by the
wife (tafrīq) (Art.s 176-197). This kind of divorce must be based on
specific grounds that are borrowed from the Maliki school of law.
The grounds for judicial divorce include: the husband suffering
from an incurable disease; his failure or his inability to maintain
his wife; absence/desertion for three years without a lawful excuse;
the husband’s imprisonment for ten years or more, in which event
she can ask for a divorce after the first five years of imprisonment;
and harm (ḍarar) which can denote both physical and psychological
injury (Art.s 89, 176, 191, 194).
– Thirdly there is the divorce against payment (kholc) (Art.s 156-176).
This kind of divorce is initiated by the wife whereby she provides
SHARIA AND NATIONAL LAW IN AFGHANISTAN 307

financial consideration in exchange for her divorce. Kholc represents

the only form of dissolution whereby the wife has the right to initi-
ate divorce proceedings without pleading a special reason such as
harm or injury as grounds for divorce. Under Hanafi law, however,
it can only be effectuated with the husband’s consent, severely limit-
ing the scope of this right. The rules on kholc in the Afghan code
fail to take note of the family law reform measures that other
Muslim countries have introduced. An Afghan woman’s attempt to
utilise kholc under the Civil Code can, therefore, be frustrated sim-
ply by the husband’s refusal to agree to her proposal.

Finally, there is the annulment of the marriage (faskh) (Art.s 132-134),

the legal dissolution of the marriage contract on the basis of an absence
of a key requirement for the legality of the contract. This can be the
case when one of the two parties has not consented to entering into the
marriage, when psychological illnesses (such as insanity) are detected,
or when the dower is inadequate (Kamali 1985: 184).
It is clear that the Afghan Civil Code does not meet the standards en-
visaged in the Bonn Agreement or the equality clause of the 2004 con-
stitution. Therefore, in order for the civil code to reflect these standards,
it needs to be revised, not only with reference to polygamy and divorce,
but also with regard to all of its provisions that do not comply with
these standards.

Code of Personal Status of Shi’i Afghans

The Code of Personal Status of Shi’i Afghans (CPS) is composed of 236
articles. Article 1 states that the code was drafted in response to Articles
131 and 54 of the Constitution of 2004 to regulate the personal status of
Shi’i Afghans. Accordingly, the Supreme Court must appoint eligible
Shi’i judges to implement the code (Art. 2). Whenever issues arise that
are not addressed by the provisions of the CPS, the court shall decide
in accordance with the Shi’i Ja’fari school of law as espoused in the
writings (fatwas) of its most renowned and recognised religious author-
ity the so-called ‘source of imitation’ (marjac-e taqlīd) (Art. 3).
According to Article 123 of the CPS, the husband is the head of the
family. This kind of regulation is found in almost all family codes in
Islamic countries. However, Article 123 further provides that the court
may appoint the wife as head of the household, if it is established that
the husband is intellectually unable to assume this position. The much
contested Article 132(4) of the first draft of the code, which provided
that the wife had to be sexual available whenever the man so wished,
was omitted in the final version, as was the chapter on temporary mar-
riage, which is recognised under Shi’i law, but prohibited under all
308 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

Sunni schools of law. Furthermore, Article 94 CPS stipulates that the

marriageable age for women is 16 and for men 18, which is remarkable
considering the Shi’i rules allowing for marriage from the age of pub-
erty, i.e. 9 for girls and 15 for boys.

7.7 Criminal law

As mentioned earlier, according to the Bonn Agreement, all legislation

that does not conflict with the regulations stipulated in the existing legal
codes or with the international legal obligations to which Afghanistan
has committed itself shall remain in place. Thus, to this extent, the
Penal Code of 1976 is still applicable. Furthermore, the Law on
Detection and Investigation of Crimes of 1978 (LDIC), the Counter
Narcotics Code of 2005, the Juvenile Code of 2005, and the Police Law
of 2005 are applicable. The Criminal Procedure Code of 1965 (CPC), as
amended in 1974, has been replaced by a new Interim Criminal
Procedure Code (ICPC) that was ratified by the Ministry of Justice on
25 February 2004. The Code has 98 articles and was prepared by the
Italian Justice Project Office, an Italian organisation responsible for
oversight and implementation of legal reform projects funded by the
Italian government in Afghanistan. Regrettably, these sets of laws do
not always operate well together. For example, Article 98(3) of the ICPC
states:

Upon promulgation of this law, any existing laws and decrees

contrary to the provisions of this code are abrogated.

This article has been causing confusion and various problems for legal
practitioners in the executive and the judiciary. For a police officer, a
prosecutor, or a judge, it is extremely difficult to know which article(s)
of the LDIC or CPC is contrary to the provisions of the ICPC and which
is not (Gholami 2007: v).
Furthermore, according to some reports, substantive criminal law in
Afghanistan continues to be governed in large part by Islamic law
(Danish Immigration Service 2000: 35; Lau 2003: 21) and in certain
areas by customary law (International Legal Foundation 2004: 14).
Some of the punishments awarded for h,add offences, such as, for in-
stance, the stoning to death of an adulterer if certain evidential require-
ments are met, do conflict with both the 2004 constitution, which pro-
hibits the imposition of punishments ‘incompatible with human dig-
nity’ (Art. 29), and Afghanistan’s international legal obligations. This is
also true for the Pashtunwali justice system, which is based on the prin-
ciple of bad, or the exchange of women between families when a crime
SHARIA AND NATIONAL LAW IN AFGHANISTAN 309

is committed as compensation for the crime (Lau 2003: 22). However,

it is not known whether the present administration intends to modify
these aspects of Islamic and customary criminal law. It is in these areas
that the most flagrant conflicts with international human rights stan-
dards still exist, and this is, together with family law, the two areas of
law likely to be the most sensitive to reform.

7.8 Other legal areas, especially economic law

The first Afghan Commercial Code was enacted in 1955. It contained

945 articles encompassing regulations on the merchant, (Art.s 1-115),
commercial companies (Art.s 116-470), commercial documents (Art.s
471-588), and commercial transactions including commercial agency
and insurance (Art.s 589-945). Islamic law did not influence Afghan
commercial legislation, as this legislation was based on the Turkish
Commercial Code, which was, in turn, based on Western secular legis-
lation, especially on German and Swiss law.
Traditional Afghan society with its tribal structures found it hard to
adapt to the provisions of the code, as it did not match people’s needs,
nor could they fulfil the requirements of the code. Article 117 of the
Commercial Code (1955) defined, for example, various kinds of compa-
nies that had to be registered at the High Court of Appeal in Kabul,
with the Ministry of Justice publishing all relevant information (e.g.
trade mark, name of the company, and other specifications) in the
Official Gazette.
The areas of intellectual property, banking, money exchange, and in-
dustrial property had never been codified and also required urgent reg-
ulation in order to attract foreign investors and industries. Accordingly,
several statutes were published to cover these areas of commercial activ-
ities. The following statutes still exist and are applicable according to
the Bonn Agreement: the Commercial Code of 1955; the Commercial
Procedure Code of 1963; the Law of the Chamber of Commerce of
1951; and the Law for the Registration of Trade Marks of 1960. Since
twenty-five years of civil war have turned the economy into a war econo-
my (Schetter 2002: 109), it is difficult to assess the effectiveness of stat-
utory commercial law in Afghanistan today.35
In 2002, a new Investment Law was enacted. 36 It aims to attract and
secure foreign investment in Afghanistan. It was amended in
December 5, 2005. According to Article 2, the State is committed to
maximising private, both domestic and foreign, investment and to creat-
ing a legal regime and administrative structure that will encourage and
protect foreign and domestic private investment in the Afghan economy
in order to promote economic development, expand the labour market,
310 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

increase production and export earnings, promote technology transfer,

improve national prosperity, and advance the people’s standard of liv-
ing. The only requirement to invest in Afghanistan is to maintain a va-
lid bank account and to pass a criminal background check. Investments
in Afghanistan can be 100 per cent foreign-owned (Art. 10).
In September 2003, a new Banking Law was passed by Presidential
Decree.37 It contains 101 articles and is clearly investor-friendly as long
as contracts are followed. There are, however, scant provisions for enfor-
cement in case of any default. Afghanistan lacks special courts for bank-
ing matters, and there is no recognition of foreign judgments.
Interestingly, the law makes no reference to the principles of Islamic
Banking. Islamic banking and interest-free banking are still in their in-
fancy in Afghanistan. The civil war has played its part in bringing about
this situation. There are currently no Islamic banks in the country, and
there is no legislation covering the institutional and procedural aspects
of this kind of banking. The war and the period following it have
brought even the regular banking system to the brink of collapse
(Kamali 2005:26).

7.9 International treaty obligations and human rights

The Constitution of 2004 contains a long list of guaranteed basic hu-

man rights of the citizens of Afghanistan. Afghanistan has also ratified
the following international treaties: CEDAW, CRC, CAT, CERD, CESCR,
and the ICCPR.
During the past twenty-five years, though, Afghan society has been
through an extraordinary amount of violence. Throughout this period,
serious abuses of human rights and war crimes by all sides in the con-
flict have taken place, including massacres, looting of houses and prop-
erty, rapes, revenge killings, illegal imprisonment, the torture and mur-
der of prisoners, and assassinations of political opponents (Amnesty
International 2002). The legacy of war, poverty, and religious fanaticism
has particularly affected Afghan women, who have suffered from both
cultural and structural inequalities and violence in Afghan society for
centuries. The persistence of this situation over the past quarter of a
century has produced what Wardak calls a ‘culture of human rights
abuses’ that is justified, and even positively sanctioned, in the shadow
of warlordism in Afghanistan (Wardak 2005: 73).
After the fall of the Taliban regime, the Afghan Independent Human
Rights Commission (AIHRC) was established on 2 June 2002 in re-
sponse to Article 58 of the 2004 Constitution.38 The AIHRC is the pro-
duct of a national consultative process between Afghan human rights
activists, the Interim Administration at the time, and the United
SHARIA AND NATIONAL LAW IN AFGHANISTAN 311

Nations. Creation of the Commission was also encouraged and sup-

ported by Resolution 134/48 of the U.N. General Assembly in 1993,
and the Paris principles. The Commission, with its eight branch offices
throughout the country, aims to protect and promote human rights
across Afghanistan. In accordance with the 2004 Constitution, the
AIHRC functions as a permanent institution for the monitoring and,
where necessary, investigation of the human rights situation in
Afghanistan. AIHRC is funded by donor countries assisting
Afghanistan, and, as such, forms an important part of national income
for the country. The AIHRC is currently chaired by Sima Samar, a well-
known women and human rights advocate and activist within national
and international forums. Before chairing the Commission, she was
elected as the Vice-Chair of the emergency Loya Jirga.
Since its establishment, the AIHRC has regularly reported on viola-
tion of human rights, related in particular to women, children, and civi-
lian casualties and death as a result of ongoing clashes between the
NATO and Taliban and perpetrators of war crimes in Afghanistan.
Their latest report, the Report on the Situation of Economic and Social
Rights in Afghanistan of November/December 2009 aims to assess the
status of economic and social rights in Afghanistan in the year 1387
(2009) against the national and international obligations of the govern-
ment with respect to these rights. The report highlights that one of the
most significant challenges in Afghanistan is still the worrying security
situation. Despite existing commitments, strategies, and policies devel-
oped to improve the socio-economic situation of Afghans, many men,
women, and children continue to suffer from extreme poverty, high un-
employment, systemic discrimination, and a lack of access to health-
care, schools, and adequate housing. Implementation and enforcement
of legislation to protect social and economic rights also remains limited
due to weak judicial institutions.39
The social reality of human rights protection in Afghanistan thus re-
veals a depressing picture of almost complete legal impunity. Not only
do grave past violations of human rights remain unpunished, but
abuses continue without any immediate prospect of bringing the perpe-
trators to justice. Any reform of the legal system to bring it in line with
international human rights standards or with the provisions of the new
constitution will require as an essential prerequisite the existence of a
stable, functioning, and capable state, both able and willing to enforce
laws (Lau 2003: 4). At present, this is sadly not the situation in
Afghanistan.
312 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

7.10 Conclusion

The Afghan legal system and its evolution throughout the last hundred
years have been coloured by three factors: its traditional and tribal gov-
ernment and local customary laws; Islamic law; and the development of
statutory laws by the central state authorities.
The relationship between Islamic law and customary law is complex.
Local customs and customary law continue to have a very prominent
role. Despite official statements to the contrary, people usually resort to
the chiefs and eldest of their communities, whom they frequently refer
to as the ‘white beards’ (rīsh-e sefīd), for dispute resolution. Generally,
when a dispute arises, the parties agree on whether the dispute is to be
resolved ‘sharia-wise’ or in accordance with customary law, e.g. mainly
the Pashtunwali (International Legal Foundation 2004: 7). There are
very few reports and data on the application of customary law in
Afghanistan. Decisions of the jirgas are conveyed orally, and there are
no written reports. In many cases, customary law strictly contradicts
Islamic law. This is especially so in cases where women, without their
consent, are given into marriage to settle disputes between families. In
these circumstances, and as is often the practical reality, the status of
Afghan women under customary law is worse than the status afforded
to them under the most conservative interpretation of Islamic law.
Historically, there has been simultaneous coexistence and competi-
tion between sharia and customary law. While Islamic law, namely the
Hanafi school of law, substantially controls matters of personal relation-
ship and most aspects of inheritance, local custom prevails in land te-
nure. In criminal matters, both sources of law can govern the case.
All Afghan constitutions, except the Constitution of 1980, endorsed
the traditional supremacy of sharia in Afghanistan. This is manifested
in the numerous references made to the sharia, proclaiming it as the
law of the nation. This can be explained by the fact that Afghans have
always had recourse to Islamic law. It has been the single constant to
have steadily survived a century of law reform and legal insecurity.
Note, for instance, a reminder of Afghan’s political and legal history:
the burst of modern legislation under Amanullah between 1919-1929
was abrogated by the succeeding regime; the Western-oriented reforms
of the 1970s were eventually completely undone in the communist era;
and the attempts to turn the legal system of the country from its reli-
gious tribal and customary basis to an imposed emphasis on a general
Sovietisation of the legal system after 1978 failed.
Since the latter half of the nineteenth century, a number of efforts
have been made to modernise and secularise the existing legal system,
or at least specific areas of the law. Statutory legislation is a latecomer
on the scene, meant to supplement the sharia especially in areas that
SHARIA AND NATIONAL LAW IN AFGHANISTAN 313

were not covered by the latter. Legislation in traditionally sharia-domi-

nated fields such as family law, law of property, contracts, and evidence
mainly sought to codify the substantive sharia rules for purposes of easy
reference by judges and lawyers. In this respect, they are seen as merely
a restatement of Islamic law (e.g., Art.s 497-750 CC, reflecting Hanafi
contract law). Other pieces of legislation, such as the Commercial Code
on the other hand, are genuinely secular codifications.
These legislative initiatives have frequently been accomplished only
through the employment of drastic, even violent, measures (Reynolds &
Flores 1993: 1). Ironically, the general effect has been to generate
strengthened support for Islamic and customary law at the local level.
Furthermore, Afghan legislation (secular and otherwise) has been lim-
ited both in its quantity and quality. The result is disjointed legislation,
with many gaps and unregulated areas of law. Röder calls the legal land-
scape ‘a patchwork’ of various norms (Röder 2009: 257). While the na-
tion may be a unified state in a strict sense, the law is in practice a frag-
mented mélange of secular, customary, and religious law variously ap-
plied according to local acceptance of central legislation and modified
by shifting conditions of governmental authority. Legal pluralism is the
hallmark of legal reality in Afghanistan.
Without exception, all surveys of the Afghan legal system have made
note of the fact that Afghanistan’s statutory laws and regulations exist
solely on paper (Weinbaum 1980: 51). Most of the literature also points
to the fact that for ordinary people and villagers, who form the vast ma-
jority of the population, tribal/customary and Islamic law are far more
significant and actually better known than state legislation (Amin 1993:
66). The limited practical value of Afghanistan’s statutory laws has to
be attributed to the decline and demise of central political authority in
Afghanistan as a result of the civil war, but also to the lack of training
of legal professionals and the inability to adapt statutory law to
Afghanistan’s particular circumstances. This means for instance that
judges either do not know the law well, or know it, but are reluctant to
apply it. The de facto subdivision of the legal system into official statu-
tory law and unofficial mainly unwritten law is characteristic of the
Afghan legal history ever since attempts were made to introduce statu-
tory laws. The difficulty of implementing statutory laws also has very
practical considerations: many of the statutes have for a long time been
unavailable, due to the destruction of archives and the complete break-
down of administrative order during the years of civil war.
Hence, in Afghanistan it is not the implications of sharia or sharia-
based law which, at least for the moment, prevent the application and
implementation of international legal and human rights standards, but
the lack of a system by which the rule of law may be established so that
the legal system is capable of – practically, socially, politically –
314 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

guaranteeing and enforcing laws effectively. Although the Government

is committed to carrying out its duties imposed not only by
Afghanistan’s domestic laws but also by the country’s international obli-
gations, the greatest challenge to action is the lack of security and the
fragile peace balance in the country.
A functional legal system in Afghanistan, which is applied by legal
professionals and accepted by the population, requires incorporation of
certain aspects of Islamic and customary law, within the limits imposed
by human rights considerations. It is impossible to reject the existing
body of tribal laws in its entirety, as this will damage the legal reform
process; but at the same time, discriminatory practices, especially those
against women, must be abolished. This, in turn, means bringing about
a gradual change of popular attitudes on part of the population at large
concerning the application of those rules that infringe upon basic hu-
man as well as basic Islamic rights. This is the conditio sine qua non for
change. As long as practices such as bad and walwar are not seen as dis-
graceful and against human dignity, imposing a system from above will
not be successful in Afghanistan. In changing these practices, history,
traditional structures, and the failures of the past must be taken into
consideration.

Notes

1 Nadjma Yassari is a senior fellow at the Max-Planck Institute for Comparative and
International Private Law in Hamburg, where she heads the Department for the laws
of Islamic countries. Hamid M. Saboory is an independent consultant, providing ser-
vices to several NGOs in Europe and North America on legal reform and develop-
ment issues related to Afghanistan. He holds an M.A. in International Relations
from Syracuse University and an M.A. in Middle/Near Eastern Studies from New
York University. The authors wish to thank Prof. Mohammad Hashim Kamali from
the Islamic University of Malaysia for his great help in collecting the necessary mate-
rials for this report.
2 Nezām-nāme

is the Dari expression for legal enactment. They are the first legal docu-
ments representing statutory law in Afghanistan, with the first being the 1923
Constitution. The expression was later changed to os,ūl-nāme.
3 According to the latest report of the Ministry of Justice in Afghanistan, the total num-
ber of nezām-nāmes

(‘laws’) enacted is 75. A list of these laws, acts, decrees, etc. is
available in the Library of the International Development Law Organization (IDLO)
in Rome and online at: http://www.idlo.int/afghanlaws/index.htm. See also Kamali
1985: 36.
4 There is unfortunately very little research and analysis on the actual effect of these
statutes. It may be presumed that they did not really have much impact on behaviour
and traditions, since one of the economically most devastating traditions of Afghan
society, the walwar (as will be exemplified under 7.6) not only survived but is still
practiced widely in Afghanistan today. See Kamali 1985: 83-105.
5 Afghan Official Gazette No. 12/1964, dated 1 October.
SHARIA AND NATIONAL LAW IN AFGHANISTAN 315

6 The Official Gazette was first published in 1963. Publication was irregular and
stopped temporary due to civil wars and foreign invasion. It resumed its regular pub-
lication in 2001, after the fall of the Taliban regime.
7 Khalq literally means ‘masses’ or ‘people’. Parčam literally means ‘banner’ or ‘flag’.
The names are derived from newspapers each party published. Khalq, edited by
Taraki, was published only six times before the government banned it. After the split,
Karmal and his supporters published the Parcham newspaper. Khalq’s membership
was primarily Pashtun and rural, while Parcham was predominately urban, middle-
class Tajiks.
8 This was said because the Parcham newspaper ‘Parcham’ was tolerated by the king
himself and its publication permitted from March 1968–July 1969.
9 Afghan Official Gazette No. 347/1976, dated 7 October.
10 Afghan Official Gazette No. 360/1977, dated 24 February.
11 Afghan Official Gazette No. 353/1977, dated 5 January.
12 Decree No. 8/1978 was already brought into effect in September, Afghan Official
Gazette No. 412/1978.
13 Afghan Official Gazette No. 409/1978, dated 17 September.
14 The constitution of the democratic government of Afghanistan (oṣūl-e as,ās,ī-ye
jomhūrī-ye demūkrātīke afghānestān)[0], Afghan Official Gazette No. 450/1980, dated
21 April.
15 Afghan Official Gazette No. 479/1981, dated 22 December.
16 Afghan Official Gazette No. 471/1981, dated 5 January.
17 Afghan Official Gazette No. 660/1987, dated 29 November.
18 Afghan Official Gazette No. 728/1990, dated 29 May.
19 This is based on eye-witness accounts and interviews with members of the Ministry
of Justice conducted by Hamid Saboory in Kabul during 2003.
20 Afghan Official Gazette No. 788/1999.
21 Afghan Official Gazette No. 783/1997, dated 12 May.
22 Some sources reported participation as high as 62 per cent, but this is unverified
23 According to the Afghanistan Research and Evaluation Unit (AREU), this kind of
election system is nowadays only used in Jordan, Vanuatu, the Pitcairn Islands, and
partially in Taiwan (Reynolds & Wilder 2004: 12).
24 The United States pledged an additional 1.1 billion dollars in financial aid for the
coming U.S. fiscal year from October, slightly less than the 1.2 billion dollars from
the World Bank. One billion dollars were also pledged by the Asian Development
Bank; 855 million dollars by Britain; 480 million dollars by Germany; and 450 mil-
lion dollars by Japan. Additionally, the European Union pledged 268 million dollars;
Spain 182 million dollars; India 181 million dollars; the Netherlands 179 million dol-
lars; Saudi Arabia 153 million dollars; Pakistan 150 million dollars; and Norway 144
million dollars. France trailed well behind with 55 million dollars.
25 See http://www.usip.org/node/5023.
26 See http://www.iec.org.af/results/index.html.
27 See http://afghanistan.hmg.gov.uk/en/conference/.
28 For an English translation of the Afghan Constitution of 2004, see ‘Annex C,
Constitution of Afghanistan 2004’, in Yassari 2005: 271-329.
29 Afghan Official Gazette No. 988/2009, dated 27 July.
30 Global Rights, Afghan Family Law, Book 2: 16. Global Rights is a group of human
rights activists formed in 2002 for the rule of law, access to justice, ensuring and
publicising human rights.
31 See http://www.mpipriv.de/ww/de/pub/mitarbeiter/yassari_nadjma.cfm.
32 The equivalent Dari terms are toyāna, pīsh-kash and shīr-bahā; qalīn is the Uzbek
equivalent and the Nuristani used the term malpreg (Kamali 1985: 84).
316 NADJMA YASSARI AND MOHAMMAD HAMID SABOORY

33 The expression ‘dower’ is used here to denote the Islamic institution of mahr. It
should not be confused with the expression of ‘dowry’, which denotes the girl’s trous-
seau, i.e. the (household) items that she brings into marriage.
34 See http://www.mpipriv.de/shared/data/pdf/mpi-report_on_family_structures_and_-
family_law_in_afghanistan.pdf.
35 According to Asifa Kakar, a judge at the Supreme Court, commercial division, the
Commercial Code is being applied in the court. There are, however, no publications
of court decisions. There are also no private compilations accessible for reference.
36 Afghan Official Gazette No. 803/2002, dated 11 September.
37 Presidential Decree No. 63/2003, dated 18 September.
38 See ‘Decree of the Chairman of the Interim Administration’, http://www.aihrc.org.af,
dated 6 June 2002.
39 See http://www.aihrc.org.af/English.

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Bartleby (2008), ‘Afghanistan’, in World Factbook, see http://www.bartleby.com/151/af.html.
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24) (1986), ‘Report on the situation of human rights in Afghanistan prepared by the
Special Rapporteur, Mr. Felix Ermacora, in accordance with Commission on Human
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Danish Immigration Service (2002), ‘The political, security and human rights situation in
Afghanistan’, Report on fact-finding mission to Kabul and Maza-i-Sharif, Afghanistan and
Islamabad, Pakistan, published 7 March 2003, see http://www.unhcr.org/refworld/docid/
3ef7f0c84.html.
Ekhwan, S. (2002), Oral history of Afghanistan from 1900-1992. Teheran: Center of Historic
and Diplomatic Documentation (in Farsi).
Ertürk, Y. (2006), ‘Integration of the human rights of women and a gender perspective:
Violence against Women, its causes and consequences’, Report of the Special Rapporteur
on Violence against Women E/CN.4/2006/61/Add.5 Mission to Afghanistan, dated 15
February 2006. New York: Commission on Human Rights of the United Nation.
Ewans, M. (2001), Afghanistan – A new history. Richmond Place: Curzon Press.
Gholami, H. (2007), Basics of Afghan law and criminal justice - A manual for the Afghan po-
lice and legal professionals, see http://www.auswaertiges-amt.de/diplo/de/Aussenpolitik/.
RegionaleSchwerpunkte/AfghanistanZentralasien/Downloads/Polizei-Legal-Manual.pdf.
Global Rights (2006), ‘h,oqūq-e fāmīl (Afghan Family Law)’, Legal Aid Guidelines, Vol. 2.
Kabul: Global Rights.
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crisgroup.org.
International Legal Foundation (2004), ‘The customary laws of Afghanistan’, Report
(September), see http://www.theILF.org.
Kamali, H. (2005), ‘Islam and its Sharia in the Afghan Constitution 2004, with special refer-
ence to personal law’, in N. Yassari (ed.), The Sharīca in the constitutions of Afghanistan,
Iran and Egypt – Implications for private law, 23-44. Tübingen: Mohr Siebeck Verlag.
Kamali, H. (1985), Law in Afghanistan: A study of the constitutions, matrimonial law and the ju-
diciary. Leiden: Brill.
SHARIA AND NATIONAL LAW IN AFGHANISTAN 317

Kohlmann, E. (1999), ‘An Afghan Ghazi: The modernization and reforms of Amir Amanullah
Khan’, Washington D.C., 9 December, see http://law.upenn.edu/~ekohlman/amanullah.
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Lau, M. (2003), ‘Afghanistan’s legal system and its compatibility with international human rights
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Baden-Baden: Nomos Verlag.
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The Sharīca in the Constitutions of Afghanistan, Iran and Egypt Implications for Private Law,
61-82. Tübingen: Mohr Siebeck Verlag.
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and Egypt: Implications for private law, 45-60. Tübingen: Mohr Siebeck Verlag.
8 Sharia and national law in
Iran1

Ziba Mir-Hosseini2

Abstract

In the nineteenth century, the last of a series of tribal dynasties

ruled Iran, and the Shia religious establishment had a monopoly
of law, which was based on their interpretations of sharia. The
twentieth century opened with the first of two successful revolu-
tions. In the Constitutional Revolution of 1905-1911, democratic
nationalists sought an end to absolute monarchy, a constitution,
and the rule of law. They succeeded in laying the foundations of
an independent judiciary and a parliament with legislative powers.
The despotic, but modernising Pahlavi shahs (1925-1979) main-
tained (though largely ignored) both the constitution and parlia-
ment, curtailed the power of the Shia clergy, and put aside sharia
in all areas of law apart from family law, in favour of a secular le-
gal system inspired by European codes.

The secularisation of society and legal reforms in the absence of

democracy were major factors in the convergence of popular, na-
tionalist, leftist, and Islamist opposition to Pahlavi rule, which led
to the 1978-1979 Iranian Revolution under Ayatollah Khomeini.
Islamist elements gained the upper hand in the new Islamic
Republic. Determined to reestablish sharia as the source of law
and the clergy as its official interpreters, they set about undoing
the secularisation of the legal system. The new constitution at-
tempted an unusual and contradictory combination of democracy
 and theocracy; for three decades Iran has experienced fluctua-
tions, sometimes violent, between emerging democratic and plur-
alistic popular movements and the dominance of theocratic des-
potism. The legal system is often the arena for confrontation be-
tween more conservative and patriarchal interpretations of the
sharia and the more liberal and pragmatic interpretations that see
no contradictions between sharia and democracy and human
rights.

Table of contents
8.1 The period until 1920. Monarchy versus religious authority 322
1906-1911: The Constitutional Revolution 324
8.2 The period from 1920 until 1965. Modernisation and
authoritarian rule 326
1920-1926: The rise of Reza Shah Pahlavi 326
1926-1941: Reza Shah and the creation of a modern legal
system 327
1941-1965: Muhammad Reza Shah, Mohammad Mosaddeq,
and the rise of Ayatollah Khomeini 328
8.3 The period from 1965 until 1985. From autocratic
monarchy to Islamic Republic 329
1965-1978: The Family Protection Law, and the
revolutionary movement 329
1978-1982: The revolution and the establishment of an
Islamic Republic 330
1982-1985: The Islamisation of the legal system 334
8.4 The period from 1985 until the present. Growing tensions
between theocracy and democracy 335
1985-1989: Khomeini’s last years and the constitutional crisis 335
1989-1997: Consolidation of the power of the Supreme
Leader and growing dissent 337
1997-2005: Reformist governments and the dual state 342
2005-2009: The dual state ends, theocratic forces predominate 344
8.5 Constitutional law 347
8.6 Personal status and family law 350
Inheritance 350
Marriage and the Civil Code 351
The 1967 and 1975 Family Protection Laws 352
Marriage, divorce and polygamy in the Islamic Republic 353
Family law and women’s activism in Ahmadinejad’s
presidency 356
8.7 Criminal law 357
8.8 Other areas of law 360
Money loans 360
Tax law 361
8.9 International treaty obligations and human rights 361
8.10 Conclusion. Sharia and national laws in Iran:
An unfinished project 363

Notes 366
Bibliography 368
322 ZIBA MIR-HOSSEINI

The Islamic Republic of Iran was born in 1979 after a popular revolution
that ended more than 2,500 years of monarchy. Iran was never colonised,
but for much of the nineteenth and early twentieth century it was a major
arena for Great-Power rivalry between Russia and Britain. Iran has a
population of over 70 million, of which 89 per cent are Shiite, 9 per cent
Sunni and the remaining 1-2 per cent Christians, Jews, Zoroastrians, and
Baha’is. Persian-speakers are the dominant and largest ethno-linguistic group
(51%), followed by the Azarbayjani Turks (24%), Gilaki and Mazandarani
(8%), Kurds (7%), Arabs (3%), Lurs (2%), Baluches (2%), and Turkmen
(2%). Seventy per cent of the population speaks Persian or related
languages, with 26 per cent speaking Turkish or related languages. More
than half the population lives in towns and cities. Eighty per cent of the
population are literate; there are 22 million students, including three million
enrolled in universities, of whom well over 50 per cent are female. The legal
voting age is 16 and approximately 50 per cent of the electorate are under
the age of 30.

(Source: Bartleby 2010)

8.1 The period until 1920

Monarchy versus religious authority

Islam came to Iran, then known abroad as Persia, in the seventh cen-
tury when the Ummayad Arabs brought an end to the Zoroastrian
Persian Sasanid Empire, though mass conversion to Islam did not oc-
cur for some time. After centuries of foreign occupation and short-lived
native dynasties, the country was unified in 1501 by Isma‘il, sheikh of
the Safavi Sufi order, when he became the first ruler of the Safavid dy-
nasty. Shah Isma‘il declared the state religion to be Twelver Shiism;
Iran remains the only country where the official religion is Shia Islam
(adherents number 10 per cent of Muslims worldwide). Distinguishing
features of this faith relevant to law are the recognition of twelve
Imams as legitimate successors of the prophet (the imamate), the occul-
tation (gheibat) of the last Imam, the possibility of reinterpretation (ejte-
had) by qualified scholars, and emulation (taqlid) of supreme religious
authority (marja‘iyat).3
For Shia, leadership of the Muslims passed after the Prophet to his
descendants, the Imams, rather than to the (elected) Caliphs, as is be-
lieved by Sunni Muslims. Each Imam was designated by the previous
one, starting with the Prophet’s cousin and son-in-law ‘Ali and ending
with the twelfth Imam, Mohammad Mahdi, the ‘Imam of Time’, who
went into occultation; his return will mark the end of time, but in his
SHARIA AND NATIONAL LAW IN IRAN 323

absence, the religious scholars (the ulama4) assume the guidance of the
Shia. Among the Shia, qualified scholars are known as mojtahed, indi-
cating that they are able to exercise judgment, or independent interpre-
tation of the law from the sources (ejtehad). According to the Shia theo-
ry of taqlid5 any man or woman who has not reached the stage of ejte-
had is an emulator (moqalled) and, as such, must choose a leading
mojtahed to be their own spiritual guide (marja‘-e taqlid, ‘model/source
of emulation’), whose opinions in matters of religious law are binding
on those who follow him.6 A marja‘ (pl. maraje‘) becomes recognised
after a long process of acquiring respect for his teaching and scholar-
ship, especially after qualifying as an ayatollah by writing a legal treatise
or manual (resaleh) for those who have chosen to follow him in religious
matters. One class of treatise is ‘Explanation of problems’ (towzih al-ma-
sa’el), a compendium of legal opinions, in a fixed format, starting with
rulings about ritual acts such as prayers and fasting, and proceeding to
chapters about contracts, such as marriage and divorce. Before the
Iranian revolution, no scholar would publish his treatise, or be recog-
nised as an ayatollah, while his own marja‘ was alive.
Annual religious taxes for the Shia include zakat (alms for the poor
and needy) and khoms (one-fifth of income), payable to the marja‘. Half
of the khoms goes to Seyyeds, descendants of the Prophet; the other
half, the ‘Imam’s share’ (sahm-e imam), is considered to be the Imams’
inheritance from the Prophet. A marja‘ receives it in his capacity as re-
presentative of the Imam of Time; he is free to spend it as he deems
suitable. The sahm-e imam is, thus, a major source of wealth and power
for the religious leaders. The maraje‘ live and teach in seminaries,
known collectively as howzeh (short for howzeh ‘elmiyeh, ‘Scientific cir-
cle/milieu’). The two most important seminaries are in Najaf in Iraq
and Qom in Iran; each city has a number of theological colleges, and
both have become widely known as centres of not only religious learn-
ing but also political Islam.
The relation between religious and worldly power has always been a
major source of dispute and difference among the Shia. In theory, in
the absence of the Imams, no worldly power is legitimate. The earlier
Safavid Shahs, as Sufi sheikhs, enjoyed unchallenged spiritual authority
with which to bolster their political power. Since the seventeenth cen-
tury, however, the relation between the Shahs and the Shia clerics has
been complex and difficult.7 In practice, most leading scholars have
been quietist, keeping themselves apart from the world of politics and
government, advising the ruler but refraining from action, at least so
long as he was felt to be preserving Islam. But other clerics, especially
since the nineteenth century, have played an active political role, taking
different positions on crucial issues such as the scope of their indepen-
dent judgement (ejtehad) and religious authority (marja‘iyat), how
324 ZIBA MIR-HOSSEINI

injustice and oppression should be opposed, and whether the Shia faith
can accommodate man-made laws.
The Safavid dynasty fell in 1722, to be replaced eventually by the Qajars,
who ruled from 1779 to 1925. During the nineteenth century, the institu-
tion of marja‘iyat emerged separately from the state, and came to encap-
sulate the notion of supreme religious authority. The birth of ‘modern’
Iran is often dated to the early nineteenth century. After two disastrous
wars with Russia, Qajar Iran was exposed to a wide range of new ideas,
thanks to the increasing presence of European diplomats, merchants,
and military advisors, the despatch of elite young men to be educated
in France, and not least the translation and publication of European lit-
erary and political materials. At the same time, Iran found itself the ob-
ject of imperial rivalry between Russia and Britain. The Qajar rulers,
especially Naser ad-din Shah (1848-1896) and his son Mozaffar ad-din
Shah (1896-1907), came under severe pressure and ultimately under-
took policies that would compromise the country’s integrity. In constant
debt, they raised money from foreigners by selling concessions; this
was widely interpreted, especially by the religious classes, as selling the
country and Islam. One such example, the Tobacco Concession of 1891,
led to a massive and successful popular protest, orchestrated by the
leading cleric Mirza-ye Shirazi. This was the start of the movement that
culminated in the Constitutional Revolution of 1905-1911.

1906-1911: The Constitutional Revolution

Until the Constitutional Revolution, the source of law in Iran was the
sharia as interpreted by the senior clerics. The Shahs had installed a
dual court structure. In addition to a system of state (orfi) courts super-
vised by a secular minister of justice, a system of religious sharia courts
also functioned. The Shah appointed the head of the justice department
and the religious judges, though in many places judges remained self-
appointed. In this way, he sought firm control over the entire adminis-
tration of justice. The sharia courts, presided over by clerics, had juris-
diction over all matters relating to family, inheritance, and civil law; the
orfi or state courts had jurisdiction over matters involving the state.
However, in practice the sharia courts enjoyed almost all judicial power
and dealt with cases in accordance with well-developed Shia rules of jur-
isprudence (feqh) (Banani 1961: 68; Amin 1985: 52-60). At the local le-
vel, the clergy, together with tribal chiefs, big landowners and mer-
chants, controlled the urban and rural population. Clerics supervised
land transactions and provided for both education and social care.
The constitutional movement brought together a wide range of differ-
ent elements: merchants and clerics, Muslim reformist intellectuals, se-
cular liberals and nationalists. The common aim, if on differing
SHARIA AND NATIONAL LAW IN IRAN 325

grounds, was to limit the absolutism of the Shah through a constitu-

tion, an elected legislature, and an independent judiciary. Many suppor-
ters of the movement did not, however, appreciate the implications of
its secularist, liberal, and democratic nature. The leading Shia clerics
were ambivalent and took different positions. Mirza Mohammad
Hossein Na‘ini (1860-1936), the most high-ranking cleric to support the
movement, provided for instance religious arguments for the rejection
of absolutism and a defence of constitutionalism.8 In contrast, the main
clerical opponent of the constitution, Sheikh Fazlollah Nuri, argued that
ideas of democracy and freedom, the reforms advocated by the constitu-
tionalists, and the establishment of a parliament to enact legislation,
were in contradiction with Islam. He further maintained that men and
women, Muslims and non-Muslims have different status and rights un-
der the sharia, and as such cannot be treated on an equal basis. Nuri
was opposed to the establishment of parliament on the grounds that
any man-made law would necessarily clash with religious law. In his
view, religious scholars must control the process of law-making as well
as the judiciary.
In August 1906, Mozaffar ad-din Shah was forced to grant a parlia-
ment (National Consultative Assembly, Majles-e Shura-ye Melli), and at
the end of December, shortly before his death, he signed the first con-
stitution (Qanun-e Asasi, ‘Fundamental Law’). The constitution, which
was largely secular, with an emphasis on popular sovereignty, codified
several constitutional rights, such as freedom of expression and equality
before the law. Following objections by religious scholars, a Supplement
to the Constitution was drafted to include more references to Islam and
to the necessity for the scholars to approve all laws. The new Shah,
Mohammad ‘Ali, signed the Supplement in October 1907; but the fol-
lowing year, with Russian help, he staged a successful coup against the
constitutionalists. In 1909, constitutionalist forces advanced on Tehran,
deposed the Shah, and executed Sheikh Fazlollah Nuri. Parliament was
restored, along with the constitution.
One of the main demands of the constitutionalists was the creation
of a House of Justice (edalatkhaneh). This was reflected in the 1907
Supplement, nineteen articles of which (Art.s 71-89) define the power,
nature, and organisation of the courts, and lay the basis for an indepen-
dent judiciary and a unified legal system (Amanat 1992). At the same
time, the clergy were given a concession in the form of Article 2, which
required that parliament’s enactments must never be at variance with
the sacred precepts of Islam, and established a body of five clerics with
veto power over bills deemed to be in contradiction with the sharia. In
the same year (1907), a four-tier civil court system was created in
Tehran: the Court of Property and Financial Claims, the Criminal
Court, the Court of Appeals, and the Supreme Court of Appeals. In
326 ZIBA MIR-HOSSEINI

1908, a Dispute Court was created to deal with disagreements between

civil and sharia courts. In 1911, parliament set up a temporary commit-
tee to consider ‘transitional laws’, and the French jurist Pierny was
charged with designing codes of criminal, trade, and civil law. To con-
tain the opposition of the clerical establishment to these measures, their
temporary and experimental nature was stressed (Banani 1961: 69).
But the process of law reform soon ground to a halt, due to
skirmishes between parliament and the clergy, who were adamant about
retaining the sharia as the only source of law and their power as its sole
interpreters. In short, the creation of a new judiciary became entangled
in the ideological struggles that remained unresolved in the
Constitutional Revolution. The new parliament survived, the founda-
tions of a secular democracy had been laid, and there was evidence of
the beginnings of a lively, independent press, but religious elements
were still strong factors in governance and daily life, and the potential
for monarchical despotism remained.

8.2 The period from 1920 until 1965

Modernisation and authoritarian rule

1920-1926: The rise of Reza Shah Pahlavi

The early 1920s saw the end of the Qajars and a return to despotism
under the new Pahlavi dynasty. During the World War, Russian,
Turkish, and British forces occupied much of Iran. Reza Khan, a
Cossack officer, rose to prominence while dealing with the disorders
that pervaded the provinces in the aftermath of the war. Following a
coup d’état in 1921, he became War Minister, then Prime Minister, and
in 1925 parliament proclaimed him Shah. The clergy, deeply shaken by
developments in neighbouring Turkey and fiercely opposed to his origi-
nal plan to establish a republic, watched from the sidelines in dismay.
A westernising secular nationalist, Reza Shah formed a strong mili-
tary and a centralised bureaucracy. He also established both the secular
judiciary and the greatly expanded secular educational system that the
constitutionalists had wanted. In these and other ways he deprived the
clerics of their former monopolies and resources, though he did not go
as far as his model Kemal Atatürk in Turkey. Though many of his re-
forms were popular, he ignored or manipulated the constitution and
ruthlessly suppressed dissent. The clerics, labelled fanatical reaction-
aries in this modernising milieu, were reduced to silence. Upon assum-
ing the throne, Reza Shah amended the 1906 Constitution to ensure
that his male descendants would succeed him. Further amendments in
1949, 1957, and 1967 increased the monarch’s powers. Although
SHARIA AND NATIONAL LAW IN IRAN 327

Article 2 of the Supplement, regarding the primacy of sharia, was re-

tained, the Shah’s modernising zeal and the authoritarian nature of the
Pahlavi monarchy rendered it irrelevant.
Reform of the legal system, halted a decade earlier, could now be pur-
sued in earnest. A number of measures between 1926 and 1936 led to
the establishment of a predominantly secular legal system. Its concep-
tual and organisational inspiration was the French system, and its archi-
tect, ‘Ali Akbar Davar, a graduate of law from the University of Geneva.
As the new Minister of Justice, Davar dissolved the old judiciary with
parliament’s approval in 1926. With the aid of French legal experts, he
began a radical restructuring and reform of the system, which ulti-
mately resulted in the complete exclusion of the clergy. In 1927 a new
Ministry of Justice was created. Consequently, some six hundred newly
appointed judges, many with European education, replaced the clerical
officials in Tehran.

1926-1941: Reza Shah and the creation of a modern legal system

In most areas of law, sharia concepts were put aside and European-in-
spired codes were enacted, including codes of Commercial Law (1932)
and Civil Procedure (1939), Criminal Law and Criminal Procedure
(1912, 1926, 1940 and 1911, 1932, respectively). Only the new Civil
Code retained the sharia. Many of its 1,335 articles are in effect a simpli-
fication and codification of majority opinion within Shia jurisprudence.
Although the clergy had lost their role in defining and administering fa-
mily law, as in other areas of the law, the commission appointed by the
Ministry of Justice in 1927 to draft the code used the three most author-
itative Shia legal texts (namely, Najm ad-din Mohaqqeq Helli’s Sharaye‘
al-eslam, Zein ad-din Shahed Sani’s Sharh-e lom‘eh, and Mortaza
Khorasani’s Makaseb) as sources, and the Belgian, French and Swiss
codes as models (Mehrpoor 2001: 6).
Parliament approved the civil code in two phases, in 1928 and 1935.
Volume 2, dealing with personal status and the family, retained the pa-
triarchal notion of family as constructed in classical Shia jurisprudence.
In 1931 a separate marriage law required that all marriages and divorces
be registered in civil bureaus to be set up in accordance with the regula-
tions of the Ministry of Justice. In the same year, parliament passed a
law defining sharia courts as ‘special courts’, which not only reduced
their jurisdiction to disputes involving the essential validity of marriage
and divorce but also placed them under the authority of state courts
(Banani 1961: 78-79). In 1932 another law deprived the clerics of one of
their main sources of income by relegating to secular courts the regis-
tration of legal documents, of ownership, and of other transactions con-
cerning property. The secularisation of the judiciary culminated in 1936
328 ZIBA MIR-HOSSEINI

when the employment of clerical judges was terminated, almost over-

night, through a law that required serving judges to have a law degree
from either Tehran Faculty of Law or a foreign university. It was also in
1936 that Reza Shah’s policy of unveiling (kashf-e hejab), begun a decade
before, reached its zenith with a law prohibiting women’s appearance
in public wearing a traditional Iranian chador or scarf. This ultimate se-
cularising measure was to send the public a strong message about the
emasculation of religious-based law and practice.
Reza Shah’s legal reforms, in the words of one of his admirers,
‘achieved no less than the Westernisation of the judicial concepts, insti-
tutions, and practices of Iran’ (Banani 1961: 76). But the authoritarian
way in which they were implemented led to further polarisation be-
tween sharia and state law; the deliberate exclusion of the clergy alie-
nated them and put them on the defensive. The reforms were not ac-
companied by the promotion of independent decision-making, democ-
racy, or democratic institutions. Further, Reza Shah’s adoption of
European legal systems and codes bypassed the philosophy that in-
formed them, as his autocratic rule would not tolerate the impartial op-
eration of the new judiciary.

1941-1965: Muhammad Reza Shah, Mohammad Mosaddeq, and the rise of

Ayatollah Khomeini
At the start of World War II, Reza Shah clearly favoured Germany, and
his reign came to an abrupt end in 1941 when British and Soviet forces
occupied Iran and forced him to abdicate in favour of his son
Mohammad Reza. Over the next decade renewed political debate and
activity, dominated by the communist Tudeh party and the secular
National Front, culminated in Mosaddeq’s nationalist government of
1951-1953, which initiated grand economic and political reforms and led
to the temporary exile of the Shah and the nationalisation of the oil in-
dustry. Mosaddeq’s secularism antagonised the clerical establishment,
while Britain and the USA were frightened by his nationalism and the
rise of the Tudeh. In 1953, after a CIA-engineered coup, Mohammad
Reza Shah resumed his reign as a U.S.-supported autocrat. During the
following years, he alienated much of the country by allowing a massive
increase of U.S. influence, and by suppressing further dissent and in-
deed parliamentary activity.
Following the death of Ayatollah Seyyed Aqa Hossein Qommi in
1947, Ayatollah Hossein bin ‘Ali Tabataba’i Borujerdi emerged as the
highest religious authority – the sole marja‘ of the Shia. Though op-
posed to the Tudeh and Mosaddeq, Borujerdi was a political quietist
and remained in the Qom seminary, which he is credited with reorga-
nising. Meanwhile, other clergy were planning to resume a more active
SHARIA AND NATIONAL LAW IN IRAN 329

political role in opposition to the Shah’s policies. Their plans escalated

rapidly after Borujerdi’s death in 1961, which itself precipitated a crisis
in the supreme religious authority (marja‘iyat) as there was no single
scholar prominent enough to succeed him in this capacity. In 1962, in
an effort to gain popular support, the Shah instituted his ‘White
Revolution’ or ‘Revolution of the Shah and People’, including land re-
form and votes for women. Soon after, Ayatollah Khomeini came to pro-
minence, publicly denouncing the Shah for his attacks on the clergy
and his increasing dependence on foreigners. On 5 June 1963,
Khomeini was arrested. The authorities violently put down large protest
demonstrations in Tehran, Qom, and other cities. Khomeini was re-
leased in April 1964, but rearrested in October after a fiery sermon
against the Shah. This time, he was exiled to Turkey; in October 1965
he was allowed to change his place of exile to Najaf, where he stayed
until 1978 (Martin 2000: 62-64).

8.3 The period from 1965 until 1985

From autocratic monarchy to Islamic Republic

1965-1978: The Family Protection Law, and the revolutionary movement

Under Mohammad Reza Shah there were few adjustments to the legal
system, which was still based on the 1906 Constitution and on the hier-
archical French model of the legal system implemented by his father.
In 1963, as part of the ‘White Revolution’, in order to provide accessible
and simpler administration of justice, rural tribunals (khaneh-ye ensaf)
were set up, consisting of five members appointed from among local
villagers. They were competent to handle land and water disputes and
low-value civil suits. Many thousands of these tribunals were created by
1979; though they further secularised the administration of justice in
the villages, there is evidence that they were controlled by the richer
peasants (Hooglund 1982: 128).
The major legal reform under Mohammad Reza Shah was the Family
Protection Law (FPL) of 1967, which put men and women on the same
footing in terms of access to divorce and child custody. Though the in-
itiative for the reform came from the nascent women’s movement, by
the time it became law it had already been co-opted by the official
Women’s Organisation of Iran under the patronage of Princess Ashraf,
the Shah’s twin sister. This compromised the legitimacy and signifi-
cance of the reforms. The left and the secular opposition identified the
FPL with the despotic Pahlavi regime, which had already appropriated
the women’s movement. The clerical establishment, for its part, was
united and vocal in denouncing the reforms; Ayatollah Khomeini issued
330 ZIBA MIR-HOSSEINI

a fatwa that any divorce under the FPL was invalid under the sharia
(Algar 1980: 441).
The events that led to Ayatollah Khomeini’s exile in 1964 marked the
start of the revolutionary movement. The independence of the judiciary
was further undermined after 1965. Politically significant legal cases
were given to government-oriented judges and special tribunals were in-
troduced, weakening the regular administration of justice. Military tri-
bunals, for instance, had jurisdiction in cases of state security and in
narcotics cases (Amin 1985: 55-63). Numerous violations of civil and po-
litical human rights took place. Meanwhile, the Shah’s ‘White
Revolution’ and his ambitious plans for socio-economic development
and modernisation focussed on increasing production, land reform,
providing credits in the countryside and housing in the rapidly growing
cities. Much land was transferred from big landowners and religious
endowments (waqf) to small farmers, but the agrarian sector barely pro-
gressed, and promises to fight poverty and provide social services were
not fulfilled. Bad governance, corruption, and extravagance were accom-
panied by widening wealth and income gaps. By the mid-1970s Iran
was in an economic crisis.

1978-1982: The revolution and the establishment of an Islamic Republic

Opposition to the Shah came from many directions. Among leftist
groups, the Tudeh, discredited by their links to the USSR, lost support
to the Marxist Fedayin-e Khalq and the Islamist-socialist Mojahedin-e
Khalq, whose guerrilla activities against the regime escalated in the
early 1970s as the Shah’s excesses further alienated the intellectuals
and the people. Among the religious opposition, Ayatollahs Mahmud
Taleqani, Morteza Motahhari, and Allameh Tabataba’i contributed
greatly to the creation of a modernist Islamic political discourse, along
with religious intellectuals like Jalal Al-e Ahmad, Mehdi Bazargan, and
‘Ali Shariati (Dabashi 1993). A number of Islamic associations of pro-
fessionals, students, and intellectuals became fora for revolutionary
ideas and sought to counter secular or non-Muslim groups. One of the
most important religious intellectuals was Mehdi Bazargan, who (with
Yadollah Sahabi and Ayatollah Taleqani) in 1961 founded the Liberation
Movement (Chehabi 1990). From 1966 until its closure in 1972, the
Hosseiniyeh Ershad (a religious meeting-place in north Tehran) was the
main forum for the new Islamic discourse. Key Muslim intellectuals
lectured there, including Shariati, the most popular and influential
Islamic ideologue of the revolution (Rahnema 1998).
By the mid-1970s the opposition came under the leadership of
Ayatollah Khomeini from his exile in Iraq and later (in 1978) in Paris.
The revolutionary forces were united in their main aim: to reject the
SHARIA AND NATIONAL LAW IN IRAN 331

autocratic, unjust, and unaccountable Pahlavi monarchy, the inequal-

ities in society, and the overwhelming influence of the USA. But the al-
ternatives they sought were as multiple and varied (and often contradic-
tory) as they were themselves: a popular democracy; a classless society;
a socialist state; national autonomy; an Islamic government, with rulers
guided by the ulama and the sharia.
The success of the revolution was assured when on 16 January 1979
the Shah left Iran for good, and on 1 February Ayatollah Khomeini re-
turned in triumph. The first decade after the revolution was a period of
establishment of the Islamic Republic, marked by the war with Iraq
(1980-1988) and by bitter struggles, first between the different elements
that had contributed to the revolution, and then between the propo-
nents of liberal-democratic and theocratic Islam, whose values became
jointly enshrined in the constitution.
The Revolutionary Council immediately appointed Mehdi Bazargan
to form a provisional government, composed mainly of National Front
and Liberation Movement members, moderate non-clerical Islamists,
and nationalists, all of whom wanted a secular democratic republic.
Khomeini’s clerical followers had different ideas. Inspired by Ayatollah
Motahhari (Dabashi 1993: 147-215), they soon formed the Islamic
Republican Party (IRP), led by Ayatollah Mohammad Beheshti together
with Akbar Hashemi Rafsanjani and ‘Ali Khamene’i, both of whom
were later to be president. These were populist Islamic radicals intent
on establishing an Islamic state governed by Islamic law. They were op-
posed by quietists in the seminaries who wanted the clerics to abstain
from government, and who were represented by Ayatollah Kazem
Shariat-madari, whose supporters formed the Islamic People’s
Republican Party. Also contending for power and popular support were
the Islamic-socialist Mojahedin-e Khalq (MEK) and leftist groups, such
as the communist Tudeh and the Fedayan, who wanted a socialist state
and some autonomy for ethnic minorities.
The early months of 1979 were marked by the first ‘Reign of Terror’,
as religious extremists implemented hard-line interpretations of Islamic
law. Members of the previous regime (military officers, members of the
Shah’s court, capitalists), as well as prostitutes, adulterers, and homo-
sexuals, were summarily executed. In May, Ayatollah Motahhari, a lead-
ing moderate political cleric close to Khomeini, was assassinated, and
in September the death of Ayatollah Taleqani, another influential mod-
erate, was another blow to the progressive and moderate faction in the
revolutionary leadership. Amid this violence, the new order took shape.
On 30 March a referendum had overwhelmingly approved the forma-
tion of an Islamic Republic. Many of the early leaders such as Bazargan
wanted it to be called ‘Democratic Islamic Republic’; but at Khomeini’s
insistence the version put to the referendum did not include the term
332 ZIBA MIR-HOSSEINI

‘democratic’. During the spring, Bazargan’s government and the

Revolutionary Council prepared a draft constitution, which was ap-
proved by Khomeini; at this stage, there was no mention of clerical rule.
In August, an assembly of experts – dominated by the IRP – began to
produce a final draft that included the notion of ‘guardianship of the
jurist’ (velayat-e faqih).9 A further referendum approved this constitu-
tion on 2 December.
On 4 November, radical student ‘Followers of the Imam’s Line’ occu-
pied the U.S. Embassy and took hostages. Bazargan resigned in protest,
and the religious hardliners took control of government. They had al-
ready begun their offensive against democrats, liberals, secularists, and
leftists as well as regional insurgents from the mainly Sunni ethnic
minorities (that is, Kurds, Khuzistan Arabs, Turkmen, Baluch).
Members of Bazargan’s Liberation Movement were removed from the
structures of power, though they remained the only tolerated opposition
party; they were dismissed as ‘liberals’, implying they were not Islamic
enough. In the 1990s, they would become known as the Nationalist-
Religious Alliance.
In January 1980, Abol-Hasan Bani-Sadr, an Islamic modernist who
had been among Khomeini’s advisors in Paris but was opposed to cleri-
cal rule, was elected president; but in March, elections to the new par-
liament brought the radical IRP to power. The struggle intensified be-
tween the main Islamist factions (IRP and the Followers of the Imam’s
Line), Bani-Sadr’s followers, and the MEK, the most prominent and
popular Islamic leftist organisation. Then in September, Iraqi forces in-
vaded, starting a war that was to last eight years.
In June 1981 parliament impeached Bani-Sadr and, with Khomeini’s
agreement, he was dismissed. The MEK were banned, and clashes with
them grew more violent. Also in June, a powerful bomb exploded at the
IRP headquarters while a meeting of party leaders was in progress, kill-
ing a large number of senior government officials. The MEK were
blamed for these and other political assassinations, notably, in August,
those of newly elected president ‘Ali Reja’i and Prime Minister
Mohammad Javad Bahonar. In July both former president Bani-Sadr
and MEK leader Massoud Rajavi fled to France. Between June 1981 and
May 1982, in a second Reign of Terror, most of the MEK were executed
or imprisoned; those who survived went into exile (Abrahamian 1989).
The Islamic state and clerical government were secured. In a violent re-
turn swing of the pendulum, religious despotism had ousted both secu-
larism and democracy.
The unresolved tensions that brought about the revolution were in ef-
fect written into the 1979 Constitution, a compromise document with
an uneven fusion of democratic and theocratic principles and institu-
tions (Arjomand 1992; Schirazi 1997). On the one hand, it recognises
SHARIA AND NATIONAL LAW IN IRAN 333

the people’s right to choose who will govern them, establishing demo-
cratic and legislative institutions such as the parliament and the presi-
dency, both elected by direct popular vote. On the other hand, it subor-
dinates the people’s will to that of the clerical establishment through
the institutions of guardianship of the jurist (velayat-e faqih) or
Leadership (rahbari)10 and the Guardian Council (shura-ye negahban),
composed of twelve members, six of whom are jurists (foqaha; pl. of fa-
qih) appointed by the Leader, the other six being laymen nominated by
the head of the judiciary and approved by parliament, with a tenure of
six years.11 It grants the Leader a wide mandate and a final say in run-
ning the state and charges the Guardian Council, acting as an ‘Upper
House’ with veto powers, with deciding whether laws passed by parlia-
ment conform to the sharia and the constitution. In effect, they are the
official interpreters of the constitution and sharia.
The constitution names Khomeini as Leader for life, and creates an
Assembly of Experts (Majles-e Khebregan-e Rahbari) to choose his even-
tual successor and supervise his activities, to ensure that he complies
with his religious and constitutional duties. The 86 members of this
Assembly are elected every eight years; only mojtaheds are eligible to
stand, and from the outset conservative clerics have dominated the
Assembly. From its inauguration in 1983 until his death in 2007, the
Assembly was headed by Ayatollah ‘Ali Meshkini, a powerful conserva-
tive who often acted as Friday Prayer Leader in Qom. In practice so far,
the Assembly has merely endorsed the actions of the Leader. The con-
stitution allows the Guardian Council to supervise all elections, which
they have interpreted as the right to vet candidates’ eligibility to stand.
This means that, in effect, the Assembly of Experts and the Guardian
Council form a closed system that allows the Leader unlimited power.
Through his appointees to the Guardian Council, he can control both
the legislative and the executive powers (Schirazi 1997; Buchta 2000).
With the merger of religious and political power, the state embarked
on a fierce process of islamising law and society that continues today.
The ultimate aim has been to return both law-making and the adminis-
tration of justice to the clerics and to get rid of what they see as the per-
nicious secularisation of the Pahlavi era. In measures mirroring those
of Reza Shah, the courts have been restructured and civil judges gradu-
ally purged and replaced by clerical judges. New codes based on feqh
have been enacted to enable the judiciary to conform to Shia legal
norms, replacing codes inspired by European laws. Articles of the civil
code that deviated from feqh were amended and a High Judicial School
was created in Qom to train clerics to serve in the judiciary.12 The num-
bers of clerics swelled rapidly, and by the late 1980s hundreds of them
had been recognised as ayatollahs; the highest rank was now Grand
Ayatollah.
334 ZIBA MIR-HOSSEINI

1982-1985: The Islamisation of the legal system

From the outset, attention has been focussed on two areas of law – fa-
mily and criminal laws – where the sharia courts’ jurisdiction was ter-
minated in the 1930s. In February 1979, barely two weeks after the col-
lapse of the Pahlavi monarchy, a directive from Ayatollah Khomeini’s of-
fice declared the Family Protection Law ‘non-Islamic’ and announced
its suspension and the reinstitution of the sharia, that is, articles of the
1935 Civil Code dealing with family. There followed a period of uncer-
tainty until new Special Civil Courts were created by a law with the
same name, ratified by the Revolutionary Council in September 1979.
These courts were to be presided over by clerical judges free from the
provisions of the Civil Procedure Code, hence the term ‘Special’. Their
establishment was seen as a first step towards the application of sharia
in its most important sphere: the family. It was the outcome of a com-
promise between those who urged the immediate restoration of sharia
and those who argued for a gradual approach (Mohaqqeq-Damad 1986:
513-522; Amin 1984: 132-133). It also set the trend for subsequent
changes.
‘Return to sharia’ has not been a return to the classical feqh notion of
plural and uncodified laws; the judiciary has retained not only many of
the legal concepts and laws of the Pahlavi era, but also the notion of a
centralised and unified legal system. The most drastic changes, as we
shall see, took place in the area of criminal law, where Islamic legal con-
cepts were entirely put aside in the 1920s. The wearing of hijab became
compulsory for women. The education system was segregated, and
though universities remained mixed, regulations were introduced to se-
parate the sexes in class and on campus. State censorship of the media
(familiar under the Pahlavis) intensified. Places of recreation were
closed, alcohol, prostitution, and homosexuality were forbidden. The
combination of Islamic doctrine, sharia, legislation based on sharia, fat-
was, and pre-revolutionary legislation often resulted in confusion.
Courts were forced to choose among available legal sources in an eclec-
tic manner (Zubaida 2003: 200).
Alongside the general courts, Islamic Revolutionary Courts also en-
tered the scene, under Khomeini’s supervision and with his silent ap-
proval. Local komitehs (supporters of the Islamic revolution) acted as in-
formal police and took opponents of sharia to court. Government
authority was unpredictable and normal procedures were not followed.
Closed hearings, secret verdicts, and mass executions resulted. The hu-
man rights situation, deplorable under the Shah, did not improve.
Khomeini’s regime was intolerant of those with different beliefs, and
was supported by a callous police force and numerous vigilante groups.
SHARIA AND NATIONAL LAW IN IRAN 335

Victims included citizens who did not agree with the new religious
ideology, Baha’is, and members of MEK.
Human rights violations by the regime took many forms. Political
parties were prohibited, demonstrations were violently broken up, re-
form-oriented media shut down, and political adversaries locked up in-
definitely. Political executions by shooting or hanging also occurred reg-
ularly, most often within prisons such as the notorious Evin in Tehran.
The right to a fair and open trial was violated by torture, forced confes-
sion, denial of legal assistance, and closed proceedings in revolutionary
and Islamic courts. The government was also active outside Iran in pro-
secuting and liquidating adversaries of the regime.13 Iran did not take a
defensive stance in international human rights fora. In 1982 Iran was
asked about the role of Islamic law in relation to compliance with the
ICCPR, in particular about Articles 20, 21, and 26 of the Constitution,
which assimilated human rights. The Iranian representative gave a sim-
ple answer: ‘In case of conflict between a law and the scope of Islam,
priority goes to Islam.’14
In order to facilitate legislation considered to be socially necessary,
even if it was in conflict with sharia, Khomeini gave a fatwa in 1981
granting parliament the authority to proclaim such legislation with ab-
solute majority votes. Subsequently, the Guardian Council ignored this
fatwa and refused to approve much legislation promulgated on the basis
of it. Khomeini responded in 1984 with another fatwa authorising par-
liament to create legislation based on the Islamic principles of social ne-
cessity (zarurat) and expediency (maslahat) with a two-thirds majority.
Even this strengthening of parliament’s position did not bring the de-
sired changes in the Guardian Council’s behaviour (Schirazi 1997: 63-
64).

8.4 The period from 1985 until the present

Growing tensions between theocracy and democracy

1985-1989: Khomeini’s last years and the constitutional crisis

In the aftermath of the revolution, the inherent tensions between theo-
cratic and democratic elements in the state, and between the two com-
peting notions of sovereignty embodied in the concepts of eslamiyat and
jomhuriyat (roughly, ‘Islamism’ and ‘republicanism’), had been the
main sites of confrontation among the Islamist, nationalist, and leftist
forces whose alliance had led to the revolution’s success. With secular-
ists and ‘liberal’ Islamists like Bani-Sadr, the MEK and Bazargan, and
the Liberation Movement defeated and excluded from the structures of
336 ZIBA MIR-HOSSEINI

power, argument was confined to religious terms and focussed on the

issue of the religious legitimacy of political authority.
As long as Ayatollah Khomeini was alive, the basic tensions were
managed and did not confront the Islamic Republic with a crisis of le-
gitimacy. There were several reasons for this. First, apart from
Khomeini’s personal charisma as Leader, and his religious standing as
supreme religious authority (marja‘), his style of leadership helped to
bridge the gap between the two sides. Not only was he mindful of –
and responsive to – the popular will, he managed to rise above factional
politics and to avoid being claimed by any faction. Perhaps the most im-
portant reasons were the freshness of the revolutionary momentum
and the fact that the politics of the period were preoccupied with the
Iran-Iraq war, a unifying force that provided the mechanisms for sup-
pressing dissent.
As the Islamic Republic consolidated itself, a structural contradiction
between the two notions of supreme authority – the marja‘iyat and the
velayat-e faqih – became increasingly evident. The first has no overt poli-
tical claims, having evolved through a tacit consensus between Shia
masses and clerics; it is democratic in nature in that a marja‘ derives
his position from personal recognition by individual followers. The
guardianship of the jurist (velayat-e faqih), on the other hand, relies on
the apparatus of state and demands allegiance from every citizen. In so
doing, it not only establishes the authority of one single jurist over all
others but also breaks away from orthodox Shia political theory, which
denies legitimacy to any form of government in the absence of the
twelfth Imam. It invests the Leader with the kind of powers and man-
date that Shia theology recognises only for the Prophet and the twelve
Infallible Imams (Arjomand 1988; Sachedina 1988; Akhavi 1996), and
as Zubaida observes, it is closer to the Sunni political theory of
Caliphate than the Shia theory of Imamate (Zubaida 1993).
By 1988, the tension between the two notions of authority intensified
and brought about a constitutional crisis. There was conflict not only
between the clerical supporters and opponents of velayat-e faqih, but
also between the factions within the ruling elite, who held differing
views of authority and the way the country should be run. In March
1989, Khomeini’s dismissal of his designated successor, Grand
Ayatollah Hossein ‘Ali Montazeri, added a new edge to the tension.
Montazeri was the only recognised marja‘ who supported the theory of
velayat-e faqih. He had impeccable revolutionary credentials: he had
spent years in the previous regime’s prisons, played an instrumental
role in inserting the velayat-e faqih into the constitution, and published
discussions on the subject from both theoretical and theological angles
(Montazeri 1988-1990). But he was also a vocal critic of government po-
licies and practices, unwilling to keep silent in the face of what he saw
SHARIA AND NATIONAL LAW IN IRAN 337

to be contrary to his religious beliefs. His dismissal, the outcome of an

acrimonious struggle for the succession, was in effect a proof of the im-
possibility of combining the traditional (marja‘iyat) and new (velayat-e
faqih) notions of religious authority.
The crisis was resolved when Ayatollah Khomeini himself gave his
blessing to the separation of the two institutions (velayat-e faqih and
marja‘iyat) and authorised a committee to revise the constitution.
Following his death in June 1989, the Assembly of Experts chose the in-
cumbent president, Seyyed ‘Ali Khamene’i, as the new Leader of the
Revolution. As a middle-ranking cleric, Khamene’i had no possible
claim to spiritual leadership, and he lacked Khomeini’s religious author-
ity and charisma. The concept of velayat-e faqih, and the legitimacy of
its mandate, had to be revised. The committee duly produced a revised
constitution, which no longer specifies that the Leader must be a recog-
nised marja‘, but merely able to issue opinions (fatwas) in all fields of
Islamic law (Arjomand 1992).

1989-1997: Consolidation of the power of the Supreme Leader and growing

dissent
In July 1989, parliament speaker ‘Ali Akbar Hashemi Rafsanjani was
elected president. A popular referendum ratified the revised constitu-
tion, which abolished the office of prime minister (filled since 1981 by
Mir-Hossein Mousavi) and transferred its executive powers to the presi-
dency. With Khamene’i as the new Leader and Rafsanjani as president,
the Islamic Republic entered a second phase, named ‘Reconstruction’
by its supporters, ‘Mercantile Bourgeois Republic’ by others (Ehteshami
1995; Ansari 2000). Rafsanjani’s priorities and his pragmatic approach
reversed some of the earlier policies, notably in the areas of economy
and foreign affairs. The welfare policies of the wartime government un-
der Prime Minister Mousavi were replaced by measures that encour-
aged the growth of the mercantile bourgeoisie and state-connected en-
trepreneurs (Ansari 2000: 52-81).
The new phase saw important changes, notably some tactical ideolo-
gical shifts that accompanied the breakdown of the delicate balance of
power and the working relationship that had developed between the
two ruling ‘factions’, the so-called ‘Rightists’ and ‘Leftists’. Although of-
ten spoken of as polarised factions, these terms are relative, the
Rightists being more conservative and theocratic, the Leftists more pro-
gressive and democratic; they were all, of course, Islamists and suppor-
ters of Khomeini. Indeed, differences among them are best seen as po-
sitions around which people gathered in relation to specific issues,
many in the centre shifting position according to the issue (Moslem
2002).
338 ZIBA MIR-HOSSEINI

The Leftists, who had dominated the state under Khomeini (Mousavi
was one of them) and enjoyed his implicit sanction, were now gradually
ousted from the structures of power. Their ‘radical’ elements – includ-
ing those who had engineered the seizure of the U.S. Embassy in 1979
– were purged from key positions. A new configuration of ‘Islamic re-
publicanism’ was forged, facilitated by the revised constitution and the
consolidation of the Rightist faction.
The constitutional amendments may have settled the crisis over legit-
imate authority, but they led to a renewed tension between the two com-
peting notions of sovereignty, which dominated Rafsanjani’s presidency
(1989-1997) and forced a redefinition of the relationship between reli-
gious authority and the state. To resolve the constitutional conflict be-
tween velayat-e faqih and marja‘iyat, to defuse the discord between the
Guardian Council and parliament, to ensure a more pragmatic ap-
proach to the application of Islamic law, and to compensate for the loss
of Khomeini’s charisma, the revised 1989 Constitution extended the
mandate of the Leader. This extension drew sanction from a letter by
Khomeini in 1988 in response to a question by Khamene’i, then presi-
dent, who wanted his consent to oppose the Leftist-dominated policies
of parliament and government. Khomeini had written that the Leader’s
mandate is absolute, that he can even order the suspension of the pri-
mary rules of Islam (for example regarding prayer or pilgrimage) if the
interests of the Islamic state (maslahat-e nezam) demand it. Clearly,
when Khomeini had to choose between the sharia and the survival of
the state, he chose the latter (Arjomand 1992: 156-158).
This letter revealed the tension between the application of juristic rul-
ings and the demands of running a state. At the time, the Leftists had
welcomed it, as they saw the empowerment of the state through a
strengthened Leadership as a way of defusing legalistic objections and
obstacles coming from the seminaries. Now it was the Rightists, with
Khomeini dead and one of their number as Leader, who argued – in an
ideological U-turn – for further expansion of the Leader’s power
(Moslem 2002: 74).
The revised constitution gave the Leader not only the power to deter-
mine the general policies of the state and to oversee their implementa-
tion, but also control over more institutions, notably Television and
Radio (IRIB): compare the revised version of Article 110 with the origi-
nal. A new body, the Assembly to Discern the Best Interest of the
System (Majma‘-e Tashkhis-e Maslehat-e Nezam), known as the
Expediency Council, created by Khomeini in February 1988, was now
constitutionally sanctioned (Art.s 110, 112; see Schirazi 1997: 233-247).
The Leader appoints the thirty-one members of this council from var-
ious ideological factions loyal to the regime. Its mandate is to vet laws
passed by parliament (now renamed ‘Islamic Consultative Assembly’,
SHARIA AND NATIONAL LAW IN IRAN 339

Majles-e Shura-ye Eslami) but found by the Guardian Council to be in

contradiction with the sharia; in other words, to mediate conflict be-
tween popular sovereignty (as represented in parliament) and clerical
sovereignty (as represented by the Guardian Council). The Expediency
Council also has the task of advising the Leader on important issues of
national concern (Buchta 2000: 61-63).
The 1989 Constitution increased the power of the non-elected institu-
tions at the expense of the elected ones, and thus came to reflect the
views of those who reject the restrictions imposed on velayat-e faqih by
the 1979 Constitution (Schirazi 1997: 52-55). The Leadership, emptied
of the aura of sanctity that believing Shia traditionally associate with the
person of the marja‘, and with its democratic credentials seriously
dented, now had to serve the interests of the Rightist faction and to rely
more and more on the consensus of the clerical establishment. This, in
practice, made Khamene’i, the new Leader, a hostage to the seminary
politics in which the most traditional Rightist elements – those con-
nected to the bazaar – had the upper hand.
Rightists came to dominate all those institutions that represented the
theocratic side of power in the Islamic Republic, notably the judiciary,
whose head is appointed by the Leader, and the Guardian Council.
During the first phase of the Islamic Republic when Khomeini was
Leader, this council had included both Leftists and Rightists; it had used
its constitutional mandate of supervision (nezarat) of all elections in the
Islamic Republic to allow only insiders (‘our people’, khodi) to run for
elected office, excluding secularists, religious liberals, the ‘uncom-
mitted’, and outsiders (‘not our people’, gheyr-e khodi) generally. In the
second phase, the council contained solely Rightists, and during the
1992 parliamentary elections it started to use its power – now reinter-
preted as a duty of ‘approbatory supervision’ (nezarat-e estesvabi) – to
disqualify candidates from the Left so as effectively to ensure that the
Right had a majority in the new parliament (Menashri 1992; Baktiari
1996).
By the mid-1990s the Leftist faction also lost all their influence in the
judiciary, and while they kept their middle-rank officials in government,
they no longer had ministers. One of the last was Mohammad Khatami,
Minister of Culture and Islamic Guidance; he resigned in 1992 under
pressure from the Rightist faction, who saw his liberal policies as allow-
ing a form of ‘cultural invasion’. But the honeymoon between President
Rafsanjani’s government and the traditional Right was soon over; and
by the time of the fifth parliamentary elections in 1996, a modernist
Rightist group, known as Servants of Construction, emerged under
Rafsanjani’s patronage (Ansari 2000: 82-109; Moslem 2002: 180-251).
Meanwhile, set aside from decision-making bodies, some of the senior
Leftist clerics retired from politics and returned to the seminaries;
340 ZIBA MIR-HOSSEINI

others formed political groups and bodies in the seminaries, or set up

research and study groups in Tehran and devoted themselves to ‘cultur-
al activities’, which in post-revolutionary Iran signifies the independent
study of society and politics (Jalaeipour 2003). The Leftists generally en-
tered a period of political retreat and reflection, during which some of
them broke away from theocratic and absolutist ideology and started to
argue for democratic principles and the rule of law (Ashraf & Banuazizi
2001b). In so doing, they joined the increasing numbers of ordinary ci-
tizens disillusioned by the increasing rift between the ideals of the revo-
lution they had supported and the realities of the Islamic state.
Women, more than any other sector, had reasons to be disaffected.
They felt the harsh reality of subjection to a patriarchal interpretation of
Islamic law when applied by the legal machinery of a modern state.
They kept their suffrage rights, but most of the pre-revolutionary legal
reforms were abolished. Men regained their rights to unilateral divorce
and polygamy, while women’s rights to divorce and child custody were
limited and they were forbidden to study mining and agriculture, to
serve as judges, and to appear in public without hijab. Many Islamist
women, who had genuinely, if naively, believed that women’s position
would automatically improve under an Islamic state, were increasingly
disappointed. They included some early activists, who had played in-
strumental roles in discrediting secular feminists and destroying the
pre-revolutionary women’s press and organisations, as well as many or-
dinary women for whom Islam meant justice and fairness (Mir-
Hosseini 1996).
Debates about gender issues, harshly suppressed after the revolution,
started to resurface. By the early 1990s, there were clear signs of the
emergence of an ‘Islamic feminism’: a new gender consciousness and a
critique of the gender biases in Islamic law. Some of the earlier restric-
tions on subjects women could study were removed (1986); family plan-
ning and contraception became freely available (1988); divorce laws
were amended so as to curtail men’s right to divorce and to compensate
women in the face of it (1992); and women were appointed as advisory
judges (1992) (Ramazani 1993; Mir-Hosseini 1996). It is certainly true
that the Islamic Republic’s rhetoric and policies in the 1980s margina-
lised and excluded so-called ‘Westernised’ women, but it is also true
that they empowered many other women, who came to see themselves
as citizens entitled to equal rights. It was becoming increasingly appar-
ent to them that they could not become full citizens unless a modern,
democratic reading of Islamic law was accepted.
This reading was what a group of Muslim intellectuals, advocates of
what came to be known as ‘New Religious Thinking’ (now-andishi-ye
dini), were trying to achieve. The adverse impact of the implementation
of Islamic law, as defined in classical texts of traditional jurisprudence
SHARIA AND NATIONAL LAW IN IRAN 341

(feqh-e sonnati), had already produced a kind of rethinking and rework-

ing among the clerics. A new school of ‘Dynamic Jurisprudence’ (feqh-e
puya) tried to arrive at a new interpretation of Islamic law by taking into
account the factors of time and place. This school emerged in the late
1980s, following two rulings by Ayatollah Khomeini making chess
games and music permissible (halal). It has supporters among the
younger generation of clerics, and its senior advocates, such as
Ayatollahs Ebrahim Janati, Mousavi-Bojnurdi and Yousef Sane‘i, have
issued a number of progressive fatwas with regard to women’s rights
and other social issues. Members of the school have attempted to re-
think the assumptions behind the jurisprudential theories that inform
classical interpretations of sharia. They have, however, met opposition
and sometimes persecution by conservative clerics.
The New Religious Thinkers included laymen and women as well as
clerics, all of whom now saw a widening gap between the ideals of the
revolution and the realities and policies of the Islamic state in which
they lived. Representing various strands of modernist Shia thought that
had remained dormant during the war with Iraq, they offered new in-
terpretations of Islam and began to articulate a theoretical critique of
the Islamic state from an Islamic perspective (Sadri 2001; Jahanbakhsh
2001). Most prominent was Abdolkarim Soroush, who published a ser-
ies of controversial articles between 1988 and 1990 on the historicity
and relativity of religious knowledge, later developed as a book on ‘The
Theoretical Contraction and Expansion of Sharia’. In a direct challenge
to the religious authority of the clerical establishment, Soroush sought
to separate religion from religious knowledge, arguing that, while the
first was sacred and immutable, the second was human and evolved
over time as a result of forces external to religion itself (Kurzman 1998;
Soroush 2000).
Thus, after over a decade of the experience of Islam in power, Islamic
dissent began to be voiced among ‘insiders’ and became a magnet for
intellectuals whose ideas and writings now formed the backbone of the
New Religious Thinking. Whereas in the 1980s these men and women
had seen their role as consolidating the Islamic Republic, in the 1990s,
armed with Soroush’s theory of the relativity of religious knowledge,
they wanted to create a worldview reconciling Islam and modernity, and
argued for a demarcation between state and religion. They argued that
the human understanding of Islam is flexible, that Islam’s tenets can
be interpreted to encourage both pluralism and democracy and to allow
change according to time, place, and experience. For them, the question
was no longer who should rule, but how they should rule, and what me-
chanisms there should be to curb the excesses of power. In this way,
they began to cross the red lines that had previously circumscribed any
342 ZIBA MIR-HOSSEINI

critical discussion of the political dogma that sanctioned the concentra-

tion of power in the institution of Leadership.
Soroush and his co-thinkers tried to redefine and rework Islamic con-
cepts and succeeded in producing discourses that were to become
highly attractive to youth and women. Like ‘Ali Shariati, Soroush was
immensely popular while being criticised and disdained by secular in-
tellectuals. But there were fundamental differences in their visions and
conceptions of Islam, which were undoubtedly shaped by the politics of
their own times. Shariati turned Islam into an ideology to challenge the
Pahlavi monarchy. For Soroush, Islam is ‘richer than ideology’, and all
his thinking and writing are aimed at separating the two (Cooper 1998;
Kurzman 2001; Ghamari-Tabrizi 2004). But he has himself become the
ideologue of a reformist, democratic Islam, by his critique of ‘feqh-based
Islam’, widely read as an attack on the rule of the jurist (velayat-e faqih).
The New Religious Thinkers have revived classical debates on the
nature of the divine law, which in turn reactivated a crucial distinction
that the early wave of Islamic activists distorted and obscured: this is
the distinction between the sharia and the science of feqh, which lies at
the root of the emergence of the various ‘orthodox’ schools of Islamic
law. They contend that, while the sharia is sacred, universal, and eter-
nal, feqh, like any other system of jurisprudence, is local, multiple and
subject to change in its doctrines and premises.

1997-2005: Reformist governments and the dual state

In the 1997 presidential elections, a last-minute political alliance be-
tween Rafsanjani’s pragmatic modernist right and the Islamic left put
forward former culture minister Mohammad Khatami to oppose Akbar
Nateq-Nuri, the candidate of the traditionalist right. The people voted en
masse for Khatami, who stood for ‘democracy’ and ‘rule of law’, and
whose ideas and language were drawn largely from Soroush and his co-
thinkers. Once again the popular will began to assert itself, expressing
resentment of the injustices brought by the application of pre-modern
interpretations of the sharia, and of the undemocratic nature of the cur-
rent Leadership.
The reformist movement that emerged in the aftermath of this elec-
tion was the logical and inevitable outcome of the spread of the New
Religious Thinking at both popular and political levels (Wells 1999;
Moslem 2002). Almost overnight, cleavages shifted and new political al-
liances were forged. Those who had campaigned for Nateq-Nuri, mainly
of the traditionalist right, were labelled ‘conservatives’. Those who voted
for Khatami and supported his vision called themselves ‘reformists’,
but came to be known as the ‘Second Khordad Front’ (after the date of
SHARIA AND NATIONAL LAW IN IRAN 343

Khatami’s election). The reformists were a loose coalition with a wide

range of views and little consensus on aims and directions of reform.
The victories of reformist candidates in the municipal and parliamen-
tary elections of 1999 and 2000, and Khatami’s re-election in June
2001 with over 77 per cent of the vote, showed the strength of the mass
support for the advocates of the new discourse and their vision of
Islam. One of Khatami’s main supporters, Mehdi Karroubi, head of the
main clerical organisation of the Leftist faction, the Society for Militant
Clerics (majma‘-e rowhaniyun-e mobarez)15, was elected to the important
role of speaker of parliament. But despite these electoral gains, which
put them in charge of both executive and legislative powers, the refor-
mists were unable to fulfil their electoral promises. Instead, they be-
came both internally divided and locked in a fierce political battle with
their opponents, who now were identified and aligned with the theo-
cratic and unelected side of the Islamic Republic. The unelected bodies
succeeded in frustrating most of the government’s initiatives and the
legislative moves of the reformist parliament (2000-2004). They also si-
lenced key reformist personalities, by assassination, by prosecution and
imprisonment, and by closing down the vibrant free press that was one
of their main early achievements and platforms.
Bodies under the Leader’s control, namely the Guardian Council, the
Expediency Council, and the judiciary played the central role in contain-
ing and frustrating reformist efforts to translate their vision and pro-
grammes into policies. The first two either rejected almost all the bills
introduced by reformist members of parliament, or allowed their enact-
ment only after changing them so much that they were emptied of pro-
gressive elements. At the same time, the judiciary assigned certain
branches of the Press Court and the Revolutionary Courts to restrict the
scope of debates by prosecuting reformist intellectuals, journalists, and
even members of parliament. The non-constitutional Special Clerical
Court, which since 1997 has acted like an inquisition, performed the
task of containing clerical proponents of reform.16
The resultant situation was a stalemate, a ‘dual state’ that lasted until
the next parliamentary elections in 2004. Divided and unable to deliver
on their electoral promises or to bring change in the structure of power,
the reformists started to lose popular support. By the time of the
February 2003 council elections, the stalemate produced what the refor-
mists had feared most: voter apathy. Conservatives won the major cities
by default – in Tehran, the turnout was a mere 14 per cent –, though
not the villages and small towns.
For the parliamentary elections the following year, the Guardian
Council disqualified a large number of reformist candidates, including
eighty sitting members. The reformists protested, members organised a
sit-in, and there was talk of President Khatami’s resignation, but to no
344 ZIBA MIR-HOSSEINI

avail. The election went ahead without the participation of the largest
reformist parties. The conservatives won the election, but victory came
at a price: in order to appeal to the popular legitimacy on which the
Islamic Republic was founded, they had to appropriate the reformist
platform, at least its rhetoric. Running under the banner of
‘Renovators’ (abadgaran), they now promised to implement ‘religious
democracy’, economic reforms and prosperity, and to respect the rule of
law and young people’s desire for change, diversity, and fun. They even
refrained from putting the names of their better-known personalities on
their lists of candidates, so as not to evoke sour memories. The turnout
of around 42 per cent was the lowest for any parliamentary election in
the Islamic Republic, though not as low as the reformists had warned.
In some constituencies there was no competition, as all reformist candi-
dates were disqualified. Radical elements among the Conservatives,
some from the ranks of the Revolutionary Guards, now calling them-
selves Principlists (osulgara’ian) won the majority of seats.

2005-2009: The dual state ends, theocratic forces predominate

In June 2005 the theocratic forces brought the ‘dual state’ to an end,
when one of their candidates, the hardliner and former Revolutionary
Guard Mahmoud Ahmadinejad, won the presidential election – a vic-
tory that astounded both insiders and outsiders. But to achieve this,
they had to show their hand. The Guardian Council’s disqualification of
reformist candidates could not eliminate centrists like Hashemi
Rafsanjani and Mehdi Karroubi. To ensure a reasonable turnout, the
Leader had to intervene at the last minute to undo the disqualification
of Akbar Mo’in, who represented progressive reformists. The means by
which the theocratic forces regained the presidency – rigged ballot
boxes, interference with the electoral process by organising mass votes
for their candidate – further undermined the popular legitimacy and
mandate on which the Islamic Republic had rested.
The failure of the reformists in the 2005 election was also one of the
unintended consequences of U.S. policy in the Middle East. Despite
Iran’s assistance in dislodging the Taliban in Afghanistan in 2001, U.S.
President Bush included Iran in his ‘Axis of Evil’ in early 2002. Despite
Iran’s help in stabilising Iraq following the U.S. invasion in 2003, the
Bush administration refused to talk to Iran about nuclear and other is-
sues and appeared determined on regime change in Iran. These rebuffs
all had a decisive impact on Iranian internal politics. The conservative
and theocratic forces in Iran were able to point to the reformists’ for-
eign policy failures, and to use the threat of invasion to silence voices of
dissent and to derail the democratic process. The hardliners had what
SHARIA AND NATIONAL LAW IN IRAN 345

they needed internally as well as the opportunity to aim for regional in-
fluence and popularity in the Muslim world.
The structural tensions in the Islamic Republic persisted, however,
and broke down the conservative alliance behind Ahmadinejad, just as
they had divided the coalition that brought Khatami into office. In the
December 2006 elections for local councils and the Assembly of
Experts, and in the March 2008 parliamentary elections, the hardliners
led by Ahmadinejad himself and his mentor, Ayatollah Mohammad
Taqi Mesbah-Yazdi, failed to gain any ground; a new alliance of moder-
ate reformists and conservatives won a majority in the Assembly of
Experts. The key figures in this alliance were former president
Khatami, former speaker of parliament Karroubi, and former president
Rafsanjani, now head of the Expediency Council and increasingly lean-
ing towards the reformists. Both Karroubi and Rafsanjani had been de-
feated by Ahmadinejad in the June 2005 presidential elections. The
death in July 2007 of Ayatollah Meshkini, head of the Assembly of
Experts since its inception, led to intense competition between hardli-
ners and moderate clerics to replace him. In September the Assembly
elected Rafsanjani as their head.

The most – perhaps the only – lasting achievement of the Khatami’s

two terms of presidency (1997-2005) was to have nurtured and pro-
tected a new public sphere, which survived after reformists were ousted
from government. It comprised a vocal and dynamic press and virtual
media (websites and weblogs), the universities, the seminaries, and par-
liament, where the ambiguities and contradictions in the original idea
of the Islamic state, its translation into law and policy, and the role of
Islamic jurisprudence (feqh) in everyday life were all candidly debated.
The conservatives closed many reformist publications and prosecuted
numerous prominent and outspoken reformists, many of them being
jailed for several years; nevertheless, these measures failed to silence
the debates and to circumscribe the public sphere, but rather high-
lighted the urgency of the debates and the necessity for such a sphere.
Indeed, the very fact that the scope of debate is limited to Islam, sha-
ria, and the constitution has resulted in sharpening the contrast be-
tween two visions of Islam and the two modes of governance. One is
an absolutist and legalistic Islam, premised on a notion of ‘duty’ that
tolerates no dissent and makes little concession to the people’s will and
contemporary realities. The other is a pluralistic and tolerant Islam,
based on human rights and democratic values. The first vision, advo-
cated by hardliners, has an undemocratic reading of the constitution, in
which guardianship of the jurist (velayat-e faqih) is an element of faith.
According to them, the Leader, as ruling jurist, derives his mandate
from God and his post through designation (nasb); the role of the
346 ZIBA MIR-HOSSEINI

Assembly of Experts is confined to ‘discovering the will of God’; the

Assembly, like other bodies including Parliament, is at the disposal of
the Leader, whose powers are not to be limited by human laws but by
divine law – the sharia. This view is aired in the sermons and publica-
tions of the most radical ideologues among the supporters of the
Islamic State, such as Ahmadinejad’s mentor Ayatollah Mesbah-Yazdi
and his students in Qom; and it is defended by the increasingly power-
ful Revolutionary Guards.
The second vision, advocated by reformists and, increasingly since
2005, by moderate conservatives, has a more democratic reading of the
constitution, in which velayat-e faqih is a religio-political theory.
According to them, the Leader derives his mandate from the people,
who elect him indirectly through the Assembly of Experts and can de-
pose him if he fails to fulfil his constitutional duties or abuses his con-
stitutional powers. They argue that not only does the hardliners’ reading
of the constitution negate its clear and definite republicanism (jomhur-
iyat), it is a travesty of the ideals and achievements of the 1979 revolu-
tion, perpetrated by those who want to reproduce monarchical relations
in an Islamic format.
The 2009 presidential election campaign took shape against the
background of these debates and developments. Various reformist
groups and individuals formed a coalition to mobilise people to vote,
and persuaded former President Khatami to run again. Karroubi, who
lost the 2005 election to Ahmadinejad, also announced his candidacy;
he ran on behalf of the Etemad-e Melli Party, which he had formed in
2005, shortly after resigning from all his governmental posts in protest
against what he described, in an open letter, as interference by one of
Khamene’i’s sons and the Revolutionary Guards in getting
Ahmadinejad elected. Then in March, after twenty years of political si-
lence, Mir-Hosseini Mousavi entered the presidential race, and before
long Khatami withdrew in his favour. As the last prime minister, who
had had both Ayatollah Khomeini’s backing and a popular base due to
his welfare polices, Mousavi had been urged by the Left/Reformist fac-
tion to run for president in both 1997 and 2005, but he had refused.
Now, as an independent centrist candidate, his campaign was reminis-
cent in many ways of Khatami’s in 1997. It was run by a group of
young activists, who, lacking access to the state-controlled media – in
particular TV that was heavily biased toward Ahmadinejad – skilfully
used digital media to reach large numbers of people. The polls were
ambiguous – and notoriously unreliable – but it was widely expected
that either Mousavi would win or the election would go to a second
round. Even the conservatives were anxious that Ahmadinejad might
not win his second term, and made preparations to ensure that he did.
SHARIA AND NATIONAL LAW IN IRAN 347

On election day, 12 June, the turnout throughout the country was

high. But it was followed by what many have interpreted as a military
coup d’état. From the beginning, numerous serious irregularities were
reported: Revolutionary Guards and the Interior Ministry clamped down
on Ahmadinejad’s opponents; in many cases, they kept their representa-
tives out of both polling booths and counting stations; they attacked
Mousavi’s campaign headquarters and arrested his aides and other pro-
minent reformists and journalists. The official result was announced on
TV only two hours after polling ended, declaring Ahmadinejad the win-
ner with 63 per cent of the votes, Mousavi second with less than half
that, and the other two candidates (Karroubi and Mohsen Reza’i, a for-
mer head of the Revolutionary Guards) with single figures. There were
indications that these proportions had been decided in advance of the
polling. Mousavi and Karroubi refused to accept the results, and asked
for a recount. On 13 June, Ahmadinejad celebrated his victory, and in a
provocative speech referred to those objecting to the poll as ‘dirt and
dust’ that would be soon washed away. On 15 June, an estimated 2 mil-
lion protesters marched through Tehran with the single slogan, ‘Where
is my vote?’ This was the biggest protest march since the 1979 revolu-
tion, and a direct challenge to the theocratic forces. It was followed by
more protests, which the government met with violence. In a much-
awaited Friday prayer speech on 19 June, Khamene’i, instead of finding
a healing formula, threw oil on the fire. He blamed foreign media for
‘doubts over election results’, dismissed the protesters and warned
them of further government violence if they persisted. But the protests
continued, leading to the formation of the popular movement for
change, which came to be known as the Green Movement, under the
joint – but very diffuse – leadership of Mousavi, Karroubi, and
Khatami, with Rafsanjani attempting to mediate reconciliation with the
Leadership.

8.5 Constitutional law

Iran’s first constitution was ratified in 1906 following a revolution that

ended the absolute monarchy. In 1979, after another popular revolution,
a new constitution was adopted, which abolished the monarchy and es-
tablished an Islamic Republic; it was amended in 1989. As the back-
ground and political features of each constitution have been already dis-
cussed, this section outlines articles in the current constitution relating
to legislative and judicial powers.17
The constitution combines religious, ideological, and democratic ele-
ments. It consists of 177 articles, divided into fourteen chapters, each
on a specific theme. The lengthy preamble tells the story of the 1978-
348 ZIBA MIR-HOSSEINI

1979 revolution, stressing the religious and ideological rationale for the
merger of religious and political power. The following extract gives a fla-
vour of the document’s ideological vision and the primacy it gives to
Islam and the clergy, seen as saviours of Islam and the people:

The unique characteristic of this Revolution, as compared with

other Iranian movements of the last century, is that it is religious
and Islamic. The Muslim people of Iran, after living through an
anti-despotic movement for constitutional government, and anti-
colonialist movement for the nationalization of petroleum,
gained precious experience in that they realized that the basic
and specific reason for the failure of those movements was that
that they were not religious ones. Although in those movements
Islamic thinking and the guidance of a militant clergy played a
basic and prominent part, yet they swiftly trailed off into stagna-
tion, because the struggle deviated from the true Islam. But now
the nation’s conscience has awakened to the leadership of an ex-
alted Authority, His Eminence Ayatollah Imam Khomeini, and
has grasped the necessity of following the line of the true reli-
gious and Islamic movement. This time the country’s militant
clergy, which has always been in the front lines of the people’s
movement, together with writers and committed intellectuals,
has gained new strength (lit: impetus) under his leadership.

Chapter I (Art.s 1-14), ‘General Principles’, continues in the same vein.

It outlines the principles of popular and religious sovereignty, Shia doc-
trines, the form of government, separation of powers, the state goals,
the legislature, the judiciary, the source and scope of laws, official reli-
gion and language, culture, family, religious minorities, and in short
the aims of the revolution. Religious and popular sovereignty are
stressed in two contradictory articles. Article 4 states:

All civil, penal, financial, economic, administrative, cultural,

military, political, and other laws and regulations must be based
on Islamic criteria. This principle applies absolutely and gener-
ally to all articles of the Constitution as well as to all other laws
and regulations, and the fuqaha’ of the Guardian Council are
judges in this matter.

Article 6 declares, however:

In the Islamic Republic of Iran, the affairs of the country must

be administered on the basis of public opinion expressed by the
means of elections, including the election of the President, the
SHARIA AND NATIONAL LAW IN IRAN 349

representatives of the Islamic Consultative Assembly, and the

members of councils, or by means of referenda in matters speci-
fied in other articles of this Constitution.

Chapter 6 (Art.s 62-99) concerns legislative powers. Articles 62-90 pro-

vide for a unicameral parliament, the Islamic Consultative Assembly,
consisting of 290 members elected by direct and secret ballot for four
years; its consultations must be open and full minutes of them made
available to the public by radio and the official gazette. Parliament drafts
legislation, ratifies international treaties, approves the country’s budget,
and has the power to impeach the president and government ministers.
It also possesses the right to investigate and oversee all affairs in the
country. In terms of legislative authority, Parliament may legislate on all
matters within the bounds of Islam and the constitution, but all its leg-
islation must be evaluated and approved by the Guardian Council (Art.s
71, 72).
Articles 91-99 of Chapter 6 provide for the Guardian Council. It con-
sists of twelve members (six clerical and six non-clerical jurists) who
serve for six years. The Leader appoints the six clerical jurists, the other
six being nominated by the Head of Judiciary and elected by
Parliament. The council’s role is to ensure that all laws in the country
are in line with Islam and the constitution, and it has the authority to
interpret the constitution and to supervise all elections – an authority
which, as already discussed, ensures the concentration of power in the
hands of clerics.
Chapter 8 of the amended constitution states that, following
Khomeini’s death, the Leader should be chosen by experts, that is an
Assembly of clerics, themselves elected by the people but subject to the
approval of the Guardian Council (Art.s 107 and 108). The conduct of
the Assembly and the mode of popular election are to be determined by
the Assembly itself, which also has the duty of reviewing the perfor-
mance of the Leader, and dismissing him if necessary (Article 111).
The amended version of Article 112 provides for an additional legisla-
tive body, the Expediency Council, created by Ayatollah Khomeini in
1988 to resolve disputes between Parliament and the Guardian Council.
The Leader appoints members of the Expediency Council; they convene
at his orders, and also act as his advisory body. The council’s members
propose its regulations, which are then ratified by the Leader.
Chapter 11 (Art.s 156-174) provides for an independent judiciary. In
the 1979 version, the judiciary was to be run by a High Judicial
Council; in the 1989 version, it is to be headed by a senior feqh-expert
(mojtahed-e ‘adel), appointed by the Leader for five years. The Minister
of Justice, chosen by the president from among candidates recom-
mended by the Head of Judiciary, is responsible for liaising between
350 ZIBA MIR-HOSSEINI

the executive and judicial powers. The Supreme Court, formed accord-
ing to regulations drafted by the Head of Judiciary, is charged with
supervising decisions of the lower courts to ensure both conformity
with the laws of the country and uniformity in judicial policy. Article
162 requires that the chief of the Supreme Court be a senior feqh-ex-
pert, appointed by the Head of Judiciary in consultation with the
Supreme Court judges for a term of five years.

8.6 Personal status and family law

As noted earlier, these laws were codified as part of the legal reforms
during the reign of Reza Shah, the first Pahlavi monarch. Until then
the clergy had the monopoly of defining and administering family law;
they performed marriages and divorces and dealt with disputes relating
to marriage and inheritance in sharia courts, in accordance with the
principles and procedures of Shia law.

Inheritance
Inheritance law was codified in 1928 as part of the Iranian Civil Code.
Part 4 of Book 1 of the Code (‘On Wills and Inheritance’) sets out var-
ious aspects of inheritance law in 124 articles (Art.s 825-949), which re-
main faithful to Ja‘fari or Ithna ‘Ashari (Twelver) Shia jurisprudence.
Like Sunni law, the Shia law of inheritance is based on a system of
rights that grant the legal heirs of the deceased a share of his estate. Its
salient features are as follows:

– Surviving relatives of the deceased are grouped in order of prece-

dence, based on class (tabaqeh) and degree (darajeh) of closeness of
blood relationship. As a class, descendants precede antecedents.
Within the class, relatives nearer in degree to the deceased exclude
more remote ones. In all classes, a male’s share is double of that of
a female.
– The chief difference between Shia inheritance law and Sunni law is
that the former grants a higher status to females as legal heirs. If a
deceased person is survived only by daughters (no sons), in Shia
law daughters inherit the whole estate, whereas in Sunni law they
inherit half the estate and the other half goes to the nearest agnate
(s) of the deceased.
– A man or woman can make a will but testamentary power is cur-
tailed in two respects. First, a legal heir cannot be excluded nor can
the share to which he or she is entitled be reduced. Secondly, no
SHARIA AND NATIONAL LAW IN IRAN 351

more than one-third of the amount of one’s net estate can be willed
away without the consent of the legal heirs.

In 2007, the Zainab Society, a conservative women’s association that

supported Ahmadinejad in the 2005 election (several members were
elected to Parliament in 2004) presented a bill to Parliament amending
Civil Code Article 946; this article, reflecting the majority Shia position,
states that a man inherits a share of the entire estate of his wife, but a
widow cannot inherit land, only ‘moveable property’ and a share of the
value of any buildings or trees. The amendment proposed to enable a
widow, like a widower, to inherit a share of the entire property of her
spouse. The bill was ratified by Parliament in 2009, and approved by
the Guardian Council in February 2010. This – a small but progressive
step by a conservative government – remains the only reform in the
area of inheritance law.18

Marriage and the Civil Code

Family law, however, has an uneven history of reform. It was codified
in 1935 as part of the civil code. Articles 1031-1206 of Volume Two deal
with kinship, marriage, termination of marriage, family relations, and
children. They retain the patriarchal bias of the sharia. Limited reforms
were introduced, adopting principles from other schools of Islamic law
so as to extend the grounds upon which a woman could obtain a judi-
cial divorce to include the husband’s refusal or inability to provide for
her (Art. 1129), his refusal to perform his marital (sexual) duties, his
maltreatment of her and his affliction with a disease that could endan-
ger her life (Art. 1130). Otherwise, the only departure from classical
Shia law is Article 1041, prohibiting the marriage of girls under thirteen
(Banani 1961: 69-84).
Meanwhile, in 1931 a marriage law had been enacted, consisting of
20 articles and 2 notes setting out procedural rules for implementation
of the civil code concerning matrimonial transactions. Articles 1 and 2
required that marriages and divorces be registered in civil bureaus set
up in accordance with the regulations of the Ministry of Justice. Failure
to do so did not affect the validity of the marriage or the divorce, but in-
curred penalties and the loss of legal recognition by the state, thus re-
flecting a dual notion of legality: legal/official (qanuni/rasmi) as opposed
to religious (shar‘i). Article 3 set financial penalties and prison terms for
all those involved in the marriage of girls under thirteen years of age.
Articles 4 and 8-17 – all incorporated, in slightly different wording, into
the 1935 Civil Code – deal with a wife’s right to maintenance and her
right to initiate divorce proceedings, requiring that such actions be
brought initially to civil courts. In the same year, the jurisdiction of
352 ZIBA MIR-HOSSEINI

sharia courts was reduced to disputes involving the essential validity

(asl) of marriage and divorce (Banani 1961: 78).

The 1967 and 1975 Family Protection Laws

A major change in the sphere of family law occurred in 1967 with the
enactment of the Family Protection Law (FPL), which curtailed men’s
rights to arbitrary divorce and polygamy. The civil code was left intact
and reforms were achieved through procedural devices (Hinchcliffe
1968). Comprising 23 articles and 1 note, the FPL introduced new rules
for registration of marriage and divorce and set up new courts for deal-
ing with all kinds of familial disputes. All divorcing couples were re-
quired to appear in these courts, which had their own procedural rules
and were presided over by civil judges, some of them women. In the
absence of spouses’ mutual consent to divorce, and upon the establish-
ment of certain grounds, the court would issue a certificate referred to
as ‘Impossibility of Reconciliation’. Grounds available to men were par-
allel to those available to women; both could apply to the court to ap-
point arbiters to try to bring about reconciliation, although the final de-
cision on divorce and child custody arrangements rested with the court
(Art.s 6-13). Registration of a divorce without a court certificate was
made an offence, subject to the penalty of six month’s to one year’s im-
prisonment for all parties involved, including the registrar (Art.s 14,
16). To avoid a clash with sharia provisions that recognise divorce as the
exclusive right of a man (reflected in Art. 1133 of the 1935 Civil Code: ‘A
man can divorce his wife whenever he wishes’), the FPL resorted to a
legal device: it required that conditions in which a divorce certificate
could be requested from the court be included as stipulations in all
marriage contracts (Art. 17). Article 4 of the 1931 Marriage Law, re-
peated in Article 1119 of the Civil Code, also recognises stipulations in
marriage contacts, giving a wife, in certain conditions, the right to di-
vorce herself on behalf of her husband after establishing in court the
existence of a stipulated condition. Before the FPL, it was up to the wo-
man, in effect her family, to negotiate such a right for her, which sel-
dom happened. The FPL made these stipulations an integral part of
every marriage contract. In large urban centres, courts that dealt with
family disputes and were regulated by FPL procedural rules became
known as ‘FPL Courts’.
In 1975, the FPL was replaced by another law with the same title,
comprising 28 articles and 19 notes, which extended the reforms of the
FPL and formally repealed any prior laws conflicting with its mandate.
It increased the minimum age at marriage from 15 to 18 for females
and from 18 to 20 for males, placed women on a more equal footing
with men with respect to divorce and child custody, and provided the
SHARIA AND NATIONAL LAW IN IRAN 353

courts with discretionary powers to grant or withhold divorces and to

decide on child custody arrangements.

Marriage, divorce and polygamy in the Islamic Republic

In the Islamic Republic, two parallel and opposing developments with
respect to family law can be detected: the validation of the patriarchal
mandates of classical jurisprudence, and attempts to protect and com-
pensate women in the face of them. The first began with the Special
Civil Courts Legislation (SCCL) in September 1979, which created
courts by the same name to replace the Family Protection Courts that
had been suspended shortly after the victory of the Revolution in
February. The SCCL contained twenty articles and three notes, all but
one concerned with defining the structure and jurisdiction of its courts,
which are invested with the same degree of discretionary power as en-
joyed by the FPL courts (Mir-Hosseini 1993: 55-56). It allowed the regis-
tration of divorce by mutual consent, but retained an element of the
FPL reform: Article 3, Note 2 required that, if a husband wished a di-
vorce, the court must first refer the case to arbitration; if reconciliation
proved impossible, the husband should be given ‘permission to di-
vorce’. This note was in evident contradiction with the classical Shia po-
sition that grants men the right to unilateral and extra-judicial divorce
(codified as Art. 1133 of the 1935 Civil Code). The contradiction was re-
solved by reference to a Koranic verse that speaks of the appointment of
arbiters in the event of marital discord.19
The FPL was never formally repealed, however, and elements of it
have been retained in other areas of family law, although in an ad hoc
and inconsistent manner. The Guardian Council and the High Judicial
Council (until its abolition under the 1989 amended constitution) un-
dertook the revision of laws found to be in contradiction with sharia
provisions. In 1982 and 1991, they deleted, amended, or replaced fifty
articles of the 1935 Civil Code (Mehrpoor 2001: 8-16). Article 1041,
which set a minimum age at marriage (thirteen for females and fifteen
for males), was amended in 1982 to prohibit marriage prior to puberty
(defined in the amended Article 1210 as nine lunar years for girls and
fifteen for boys). The Special Civil Courts can give permission to marry
a girl under thirteen; yet Article 3 of the 1931 Marriage Law, which sen-
tences those involved in a marriage of a girl under thirteen to from six
months’ to two years’ imprisonment, has been left intact.
A similar ambiguity informs the law on polygamy. In 1984, the pen-
alty introduced by the 1975 FPL (Art. 17) for registering a polygamous
marriage without court permission was declared to be inconsistent with
sharia (Guardian Council, Opinion No. 1488, dated 9 Mordad 1363/31
July 1984). Yet Articles 5-7 of the 1931 Marriage Law, requiring a man to
354 ZIBA MIR-HOSSEINI

declare his marital status at the time of marriage and fixing a sentence
of six months’ to two years’ imprisonment if the second wife brings a
legal action for deception, have not been repealed.
The situation over polygamy becomes more complicated if temporary
marriage (commonly known as mut‘a or sigheh; see Haeri 1989) is also
taken into consideration. Although the civil code recognises this as a va-
lid marriage, the 1931 marriage law and all subsequent legislation –
even after the Revolution – are silent about the formalities of registra-
tion. The FPL, by both omission and commission, excluded disputes in-
volving mut‘a from adjudication on the basis that, not being registered,
they were devoid of legal validity. The aim was to discourage, and even
to prevent, this type of marriage without directly banning it. After 1979,
however, the Special Civil Courts not only heard disputes involving tem-
porary unions but could authorise their registration, thus giving them
‘legal’ (qanuni) status (Mir-Hosseini 1993: 162-171).
With respect to a mother’s custody rights and control over her chil-
dren after divorce or the death of the father, the FPL reforms were se-
verely curtailed. Article 15 of the 1975 FPL, placing a mother on the
same level as a paternal grandfather in terms of natural guardianship
(velayat-e qahri) of her children, was among the first to be repealed in
October 1979 (Safa’i & Emami 1995: 164-168). In the event of divorce,
the Civil Code gives a mother the right to custody of a daughter until
the age of seven and of a son until two (Art. 1169). Although a woman
acquires custody of her children if her husband dies (Art. 1170), she
loses it if she remarries (Art. 1171) and she must submit to the authority
of their paternal grandfather (Art. 1180). A single-article law passed in
July 1985 gives the widow of a ‘martyr’ (killed in the war with Iraq) the
right to receive her dead husband’s salary and to keep custody of their
children even if she remarries.
With the relaxation of restrictions on men’s rights to polygamy and
unilateral (but not extra-judicial) divorce, attempts were made to com-
pensate and protect women. In 1982, new marriage contracts were is-
sued, carrying two stipulations that marriage notaries are required to
read out to couples. The first stipulation entitles a woman to claim half
the wealth that her husband acquires during marriage, provided that
the divorce is neither initiated by her nor caused by any fault of her
own. The second enables women to obtain a judicial divorce on more
or less the same grounds available to them under the FPL; the only dif-
ference is that, in conformity with the sharia mandate on divorce, the
husband can now refrain from signing any of these stipulations. In
practice, however, the presence or absence of his signature under each
clause has no effect on the woman’s right to obtain a divorce, as the de-
cision lies with the judge. Civil Code Article 1130 was amended in 1982
to empower the judge to grant or withhold a divorce requested by a
SHARIA AND NATIONAL LAW IN IRAN 355

woman, if he considers that the continuation of marriage would entail

‘hardship and harm’ (‘osr va haraj) (Mir-Hosseini 1993: 65-70, 1996,
1997).
In December 1991, following pressure by women and the rising di-
vorce rate, a more radical step was taken with the introduction of the
Amendment to Divorce Regulations (ADR), which reinstates the re-
jected elements of the FPL divorce provisions, but under a different le-
gal logic. ADR, a single-article law with 7 notes, was approved by
Parliament in March 1992, but disputed by the Guardian Council. It
was eventually ratified in November 1992 by the intervention of the
Expediency Council. ADR outlaws the registration of any divorce with-
out a court certificate, requiring all divorcing couples, even those who
have reached an agreement, to go through a process of arbitration. If
the arbiters, one chosen by each side, fail to reconcile them, the court
allows the man to effect and register a divorce only after he has paid
his wife all her dues, unless he convinces the court of his inability to
pay (Notes 1, 2, and 3). The wife’s dues consist of her marriage gift
(mahr, promised to her on marriage, but normally never given except in
case of divorce) and maintenance during the waiting period (‘edda, a
period after divorce or widowhood during which a woman cannot re-
marry, lasting three menses or, in case of case of pregnancy, until deliv-
ery). Note 5 allows for the appointment of women as advisory judges to
work in co-operation with the main judge. Note 6 – disputed by the
Guardian Council – enables the court to force the husband to pay her
‘exemplary wages’ (ojrat al-methl), monetary compensation for the work
she has done during marriage (i.e. raising children and housework,
which she is not obliged to do by classical jurisprudence), provided that
the divorce is not initiated by her and is not caused by any fault of her
own.
In 1994 the Special Civil Courts disappeared, with the enactment of
the Law of Formation of General Courts. Until 1999 family disputes
were heard in these General Courts, which were presided over by either
a senior cleric or a civil judge, with jurisdiction over all types of cases,
from criminal to familial. Cases involving a dispute over the essential
legality of marriage and divorce were referred to courts whose presiding
judge was authorised by the Head of the Judiciary.
In 1996, a bill signed by 150 deputies was presented to Parliament
demanding the formation of Family Courts on the basis of Article 21 of
the Constitution. These Family Courts were duly formed, and began
work in 1999. Following Khatami’s 1997 election and the emergence of
the reformist movement, family law reform became a major arena of
confrontation between Khatami’s reformist government and the conser-
vative-controlled Parliament. Then in the 2000 parliamentary election,
women’s rights and the reform of family law were central to the
356 ZIBA MIR-HOSSEINI

successful campaign that led to the reformist domination of the new

Parliament. To fulfil their electoral promises, the reformists presented
41 bills that aimed to modify in various ways the inequalities that wo-
men face in law. But the Guardian Council rejected almost all of them,
including the proposal to join the Convention on the Elimination of all
forms of Discrimination Against Women (CEDAW). Eventually, how-
ever, after mediation by the Expediency Council, 21 of the 41 bills were
passed into law, albeit in some cases with their gender-egalitarian tone
and intent weakened or nullified. The bills passed included amend-
ments to the 1935 Civil Code raising the minimum age of marriage and
expanding women’s grounds for divorce and custody rights.

Family law and women’s activism in Ahmadinejad’s presidency

The conservatives regained control of Parliament in 2004, and reform
of family laws entered a lull. Meanwhile, women’s activism became
more radical and daring. In September 2006, following attacks on a
peaceful women’s gathering in a central Tehran square, a group of acti-
vists launched the ‘One Million Signatures’ campaign to change all laws
discriminating against women. Patterned after Moroccan women’s acti-
vism in the 1990s, this campaign is largely conducted by the activism
of young women, and through the internet.20
In July 2007 Ahmadinejad’s government presented a bill to
Parliament that has not yet become law. Entitled ‘Protection of the
Family’, it aims to do away with not only the pre-revolutionary reforms
that have been retained in practice, but also the protective measures in-
troduced in the 1980s and 1990s. The bill was originally prepared by
the Judiciary to set up procedural rules for the Family Courts, but the
government altered some of its articles. Four articles in particular
alarmed women’s groups and became the focus of protest; they make it
easier for men to be polygamous and restrict women’s ability to gain
compensation. Article 22 relaxes the regulations for the registration of
temporary marriages. Article 23 allows a man to contract a second mar-
riage without the consent of his first wife, if the court decides that he
can afford it. Article 25 requires the Ministry of Finance to demand tax
payments from women at the time of marriage, if they stipulate a mar-
riage gift (mahr) that exceeds a certain limit. Above all, Article 52, by re-
pealing all previous laws and acts, in effect dismantles not only the re-
forms introduced under the FPL that have continued to ban the regis-
tration of polygamous marriages without a court order, but also the
1992 Amendment to Divorce Regulations that requires a man to pay
compensation to his wife in the form of ‘exemplary wages’ before he
can exercise his unilateral right to divorce.
SHARIA AND NATIONAL LAW IN IRAN 357

Women’s rights activists, including some conservative groups, joined

forces in opposing the ‘Protection of the Family’ bill. Calling it
‘Destruction of the Family’, they succeeded in getting the support of
progressive and reformist clerics. Grand Ayatollah Sane’i declared that
taking another wife without the true consent of the first wife was pro-
hibited (haram) according to Islamic law, since polygamy in modern
contexts entails ‘harm and hardship’ for the majority of women. In
September 2008, a group of women’s rights activists went to
Parliament to lobby against the bill, as it was about to be debated. They
succeeded in persuading members of Parliament to withdraw the bill,
and to send it to the parliamentary commission for legal affairs. It was
announced that Article 23, inserted by Ahmadinejad’s government,
would be removed.
But then, in the heat of the unrest that followed the June 2009 elec-
tion, Article 23 was reintroduced in modified form: the court may allow
a man to register further marriages, if he can establish certain condi-
tions, which are more or less those specified by the 1975 FPL.21 In
January 2010, Parliament ratified the bill, taking advantage of the clo-
sure of the reformist press and the arrest of a number of women’s
rights activists. The fate of the bill remains uncertain, however, as the
Guardian Council has returned it to Parliament for revision. A member
of the Judicial Commission in Parliament observed that it is unlikely to
be debated again soon, as the council considers restrictions on men’s
right to polygamy to be in contradiction with sharia.22 Meanwhile, wo-
men’s rights activists have started a new campaign, ‘NO to Anti-Family
Bill’.23

8.7 Criminal law

The first steps at reforming and codifying criminal law in Iran came
with the success of the constitutional revolution. The constitutionalists
sought an end to the dual sharia and state jurisdictions and the creation
of a systematic and secular criminal justice system, inspired by
European criminal law. In order to preempt or at least to defuse clerical
concerns as to whether the sharia courts would continue to implement
Islamic criminal law, they began in 1911 with a Code of Criminal
Procedure, approved tentatively by the first Parliament. Then in 1912,
Parliament approved a complete Criminal Code, drafted by the French
jurist Adolph Pierny, which contained no element of Islamic jurispru-
dential concepts. This, the first major legal reform in Iran, had a lim-
ited impact, since the sharia courts continued to operate until the rise
of Reza Shah. The 1912 code was repealed by the 1926 Criminal Code,
amended in 1940; the Code of Criminal Procedure was amended in
358 ZIBA MIR-HOSSEINI

1932; both then remained in force until the 1979 revolution. Although
Islamic concepts were retained intact in the area of family law in the
form of substantive law, when it came to criminal law Reza Shah aban-
doned them, in both substance and procedure (Banani 1961: 69-70;
Amin 1985: 113; Faghfouri 1993: 284).
A major priority of the clerics who took power after the Revolution
was to replace the 1926 Criminal Code by one based on Islamic legal
concepts. In 1983, the High Judicial Council codified traditional juristic
concepts of crime and punishment in the form of an experimental bill
entitled ‘Islamic Punishment: Fixed Punishments (hodud), Retaliation
(qesas), Blood Money (diyeh) and Discretionary Punishments (ta‘zirat)’.
The Guardian Council rejected the bill, however, finding it to be incon-
sistent with sharia; but after Ayatollah Khomeini’s intervention, the bill
was ratified for an interim period of five years (Mehrpoor 1995: 99-136;
Rahami 2005: 593-594). The sections on Discretionary Punishments re-
tained many elements of the Criminal Code but introduced a number
of new offences, for instance those related to women’s dress and to
moral behaviour.
In 1991, a new criminal code was approved by Parliament on an ex-
perimental basis for five years (it was renewed twice, in 1996 and
2001). It consists of five Books. Book One is on Generalities (Art.s 1-
62). Book Two (Art.s 63-199) concerns hodud, crimes considered as vio-
lations of God’s limits, with mandatory and fixed punishments derived
from textual sources (Koran or Sunnah). It contains 8 chapters, each
dealing with one class of offence. Chapter One defines the crime of illi-
cit sex (zena) and specifies the punishment as 100 lashes, but stoning
to death for married offenders. Chapter Two prescribes death as the
punishment for sodomy (lawat), while Chapter Three lays down 100
lashes as punishment for lesbianism (mosahaqa), or death if the offence
is repeated after three convictions. Pimping (qavadi), defined as bring-
ing two or more persons together for the purpose of zena or lawat, is
punished, according to Chapter Four, by 75 lashes and (for a man) ex-
pulsion from his place of residence for three months to one year. A
slanderous accusation (qazf) of illicit sex (Chapter Five) will be punished
by 80 lashes. Chapter Six specifies 80 lashes for a Muslim caught
drinking alcohol (mosker), and for non-Muslims if they drink in public.
Chapter Eight gives amputation as the punishment for theft (serqat) but
under conditions that are hard to establish.
But the most politically controversial offences, dealt with in Chapter
Seven, are waging war against God (moharebeh) and corruption on earth
(efsad fi’l-arz). These are defined together as resorting to arms to create
fear and terror among the people, a notion derived from Koran 5: 33;
the judge will decide between the following punishments: hanging, se-
verance of the right hand and the left foot, or banishment. Since the
SHARIA AND NATIONAL LAW IN IRAN 359

beginning the Islamic regime has used accusations of these offences ex-
tensively to justify eliminating adversaries (Zubaida 2003: 194).
Disapproved political behaviour, such as membership in a forbidden or-
ganisation or activities aimed at overthrowing the regime, are also liable
to these charges. And in the aftermath of the disputed June 2009 elec-
tion, they have been once again widely levelled at members of the oppo-
sition who do not accept the election results.
Books Three and Four of the 1991 Code concern crimes against the
person, such as bodily harm and homicide. In such cases, the victim or
the victim’s family can demand either retaliation or blood money. Book
Three, on Retaliation, contains two chapters: the first (Art.s 204-268)
deals with Retaliation for Life and the second (Art.s 269-293) with
Retaliation for Bodily Harm. Book Four is on Blood Money (Art.s 269-
497), defined as monetary compensation paid to the injured party or
the relatives in case of murder or manslaughter or bodily harm. The
sums of compensation that can be demanded are not equal for Muslim
and non-Muslim victims.
Book Five, on Discretionary Punishments, reproduces the 1983 law on
offences other than those named under ‘Hodud, Retaliation and Blood
Money’. These constitute the majority of all criminal offences, and in-
clude most offences named in the pre-revolutionary criminal code.
From the outset the international human rights community con-
demned the codification of Islamic criminal justice concepts, in particu-
lar stoning as punishment for adultery, and the unequal legal treatment
of women and non-Muslims. After Khatami’s 1997 election, the refor-
mist press began to air an internal critique too. Though this critique
met fierce conservative reaction, leading to the prosecution of its advo-
cates, it has continued unabated and has, in fact, intensified. In 2002,
in the course of ‘constructive dialogue’ with the European Union, Iran
issued a kind of moratorium on stoning; the head of the judiciary is-
sued a directive to judges to that effect, while keeping the laws on illicit
sex unchanged. The moratorium continued until the hardliners re-
gained control of government under Ahmadinejad.
In May 2006, the execution of a woman by stoning led a group of
women and men activists to form the Network of Volunteer Lawyers,
who launched a campaign to remove stoning as punishment for adul-
tery from the Criminal Code (Terman 2007). They started to take up
and publicise cases of those sentenced to stoning, mainly women from
deprived backgrounds and victims of familial disputes. The campaign
brought further international and domestic attention to the issue, and
succeeded in reversing many convictions and freezing others, as well as
engaging the authorities in a dialogue on the need to rethink pre-mod-
ern concepts of crime and punishment. In 2007 they became part of a
larger international campaign launched by Women Living Under
360 ZIBA MIR-HOSSEINI

Muslim Laws.24 However, as Iran’s confrontation with the international

community over their ‘nuclear ambitions’ intensified, hardliners in the
judiciary have managed to carry out further stonings, and numerous
women remain under sentence.25
In 2007, the provisional 1991 Criminal Code had already been re-
newed twice, and the government published a draft replacement. The
new Code became the subject of a great deal of criticism inside and out-
side Iran for its non-adherence to human rights law. While the bill no
longer mentions stoning as a punishment for adultery, it has added
apostasy to the Hadd crimes. In 2008, the bill was debated in
Parliament, which modified several articles; it was ratified in
September, but at the time of writing (February 2010) the Guardian
Council had still not approved it.

8.8 Other areas of law26

Money loans
Since 1979 it has been forbidden for private individuals as well as
banks and insurance companies to charge or pay interest on loans. This
prohibition is contained in the constitution. Article 49 of the
Constitution furthermore states that interest or unjust enrichment (riba)
is punishable and adds that the government is competent to confiscate
property acquired through riba and to return this property to the right-
ful owners, or, in case this is impossible, to add this property to the
public goods.
Stipulating interest in money loans is unlawful and punishable. Every
agreement, including buying and loaning, whereby an additional favour
is stipulated to the advantage of one of the parties, is considered to con-
tain riba. The Criminal Code summarises this in Article 595 as a pun-
ishable act. The parties in a contract can in this case be punished by im-
prisonment for six months to three years, or by 74 lashes. Those con-
victed, moreover, must pay a fine of the same amount as the stipulated
riba. If it cannot be determined to whom the riba is due, then the
amount goes to the state. If the payer of riba can prove that this was
done out of necessity, then punishment will not be imposed.
In the world of banking, charging premiums proportionate to the
supplied services is legally permissible. It is also permissible for banks
to give a voluntary reward to customers who put their money in the
bank. With regard to money loans this is also permissible provided no
interest is stipulated. The levels of compensation conform to the per-
centages of interest that apply for short-term credit in other countries.
SHARIA AND NATIONAL LAW IN IRAN 361

There are no legal regulations for exceptions that exist with regard to
riba; these are determined based on jurisprudence. If riba is stipulated
in a loan, then the clause is null but the agreement remains intact. It is
permissible for the debtor to give the creditor an addition, as long as
this happens voluntarily. Banks make use of this possibility to accom-
modate their clients with their deposits. Everything takes place volunta-
rily, and thus nobody suffers loss. Muslims are furthermore allowed to
stipulate riba in contracts with non-Muslims (Ansari-Pour 1995: 165-
191).

Tax law
The most important taxes in Iran are profit taxes paid by companies
and income taxes for private persons, which are subject to the regime
of corporate income tax and the Direct Taxes Law, respectively. These
laws have no relation to sharia.27 Zakat, the religious tax on all
Muslims, and the special Shia tax (khoms), continue to be paid volunta-
rily on a private and individual basis; while the organisation and fi-
nances of the seminaries (which used to be paid for by the khoms tax)
have come increasingly under control of the state since Khamene’i be-
came Leader in 1989.

8.9 International treaty obligations and human rights

Article 4 of the 1979 Constitution sets forth that sharia not only domi-
nates positive law in Iran, but also prevails over every form of custom-
ary law and international law, including in the domain of human rights
(see 8.5). Consequently, the unequal treatment of men and women and
of Muslims and non-Muslims, have been the focus of international criti-
cism, especially regarding the treatment of Baha’is, stoning, and juve-
nile executions. In the 1980s, during Khomeini’s leadership and the
war with Iraq (1980-1988), Western governments directly or indirectly
supported Saddam Hossein, and Iran took a rejectionist stance towards
international human rights treaties. Iranian representatives adopted a
confident tone, claiming that since the sharia is the essence of justice,
commitment to the sharia and its rules must take precedence over all
others. For instance, in July 1982, the leader of the Iranian delegation
to the United Nations Human Rights Committee in Geneva said that
‘Iran believes in the supremacy of Islamic laws, which are universal.’
He went on to clarify that ‘Iran would choose the divine laws’ in cases
where human rights treaties are irreconcilable with sharia on some
point (Amin 1985: 106). However, Iran remained a party to the ICCPR,
which they joined in 1967; but like the previous regime, the Islamic
362 ZIBA MIR-HOSSEINI

Republic did not sign the optional protocols 1 and 2 concerning the in-
dividual right of Iranian citizens to complain and the prohibition on the
death penalty.
After the end of the war with Iraq and during Rafsanjani’s presidency
(1989-1997), Iran began to have a more positive attitude towards inter-
national human rights law, and pursued a policy of engagement. It
joined the Convention on the Rights of the Child (CRC), which went
into effect in August 1994, but, like many other Muslim countries, with
a general reservation: ‘The government of the Islamic Republic of Iran
reserves the right not to apply any provisions or articles of the
Convention that are incompatible with Islamic laws.’ In 1997, with the
election of Khatami and the emergence of the reform movement, a live-
ly debate emerged on the notion of Islamic human rights, and the gov-
ernment’s policy of supporting civil society by allowing the creation of
NGOs helped improve the human rights situation to some extent
(Mayer 2000; Mokhtari 2004). Nevertheless, there are some important
human rights treaties that have still not been ratified, notably the
Convention Against Torture (CAT) and the Convention Against
Elimination of All Forms of Discrimination against Women (CEDAW).
Efforts by Khatami’s government and the reformist Parliament (2000-
2004) to ratify these conventions were frustrated by the Guardian
Council. In 2002, the government presented a bill to Parliament for
Iran to join CEDAW; Parliament ratified it, but the Guardian Council
rejected it, so it went to the Expediency Council, which still has to issue
a decision.
After Ahmadinejad’s election in 2005, when the theocratic forces
took control over all three branches of government, they embarked on
systematic efforts to curb civil society and muzzle the press. They
closed down many NGOs and reformist publications, yet debates over
human rights have intensified, and many high-ranking clerics and re-
formists started to publish their views on Islam and human rights. The
most significant is a 2007 book by Grand Ayatollah Montazeri, in
which, in response to questions posed by senior religious scholars, he
makes a juristic case for the compatibility of sharia and international
human rights law, arguing that dignity is the entitlement of every hu-
man being, because it is part of their humanity, and so the Islamic state
must honour and protect it.28 This is the first time that a Shia supreme
religious authority (marja‘) has argued for human rights from a reli-
gious perspective. More significantly, perhaps, Montazeri, who had de-
voted his scholarship in the 1980s to justifying the rule of the jurist (ve-
layat-e faqih), by 2000 had became an advocate of human rights.
The sharia as interpreted by the Guardian Council, and as reflected
in the laws of the Islamic Republic of Iran, continues to be in conflict
with international human rights law. As evident from the sections on
SHARIA AND NATIONAL LAW IN IRAN 363

family and criminal laws, they contain a number of provisions that are
in contradiction with customary international human rights law. In ad-
dition, many of the numerous human rights provisions in the constitu-
tion of the Islamic Republic have never been translated into law. For in-
stance, ‘due process’ is regulated perfectly on paper. Articles 32 and 34-
39 of the constitution specify conditions by which the legal system in
Iran must abide: the regulation of prosecution, appearing before the
judge, the right to legal assistance, the right to cross-examination of wit-
nesses, and the right of appeal. The Islamic Republic has systematically
violated all these conditions from the outset, and violations have multi-
plied since the disputed 2009 election attracted further international
attention.
On 15 February 2010, the Universal Periodic Review, to which all
U.N. Members are subjected, severely criticised Iran’s human rights re-
cord during the past four years.29 The Iranian delegation, led by
Mohammed Larijani, Secretary-General of Iran’s High Council for
Human Rights, rejected the criticisms and spoke of the ‘biting lan-
guage’ of ‘Western delegations’; he cited articles of the Iranian
Constitution that protect human rights and stated, ‘[n]o Baha’i is prose-
cuted because he is a Baha’i’ and that prosecuted and jailed demonstra-
tors were guilty of ‘terrorist activities’.30

8.10 Conclusion
Sharia and national laws in Iran: An unfinished project

Twentieth-century developments in Iran, as elsewhere in the Muslim

world, intensified two deep-rooted oppositions in politics and society:
between despotism and democracy and between sharia and secular na-
tional law. Secular democrats gained the upper hand initially, in the
1905-1911 constitutional revolution, yet the promised democracy and
rule of law failed to take root, for a combination of internal and external
reasons; the resultant impasse was resolved by the despotic but moder-
nising and secularising Pahlavi monarchy. A brief resurgence of democ-
racy in the late 1940s was again brought to an end by a foreign inter-
vention in 1953; over the next 25 years, both democratic and theocratic
opposition to Pahlavi rule grew until the eruption of the 1978-1979
revolution.31
The victory of the revolution, and foundation of the Islamic Republic
that followed, marked the acme of political Islam, with its slogan of ‘re-
turn to sharia’. For some it was the beginning of a new dawn, when
God’s law – the sharia – would bring Muslims the justice and prosper-
ity that secular nation-states failed to deliver. For others, including many
of those who had originally participated in the revolution, it was the
364 ZIBA MIR-HOSSEINI

undoing of over half a century of state modernisation, and the return of

religious fanaticism. Whatever its nature, and however it was perceived,
the Iranian Revolution changed the landscape of the Muslim world. It
inspired Muslim masses and reinvigorated intellectual debates over the
nature and possibilities of the sharia.
Since its birth, the new Islamic Republic has confronted the chal-
lenges of all twentieth-century states, yet evolved in ways that inside
and outside observers did not predict. Ruled by clerics, it combined not
just religion and the state, but also theocracy and democracy. The foun-
ders made two broad assumptions: first, that what makes a state
‘Islamic’ is adherence to and implementation of the sharia; secondly
that, given free choice, people will choose ‘Islam’ and will, thus, vote
for clerics as the interpreters and custodians of the sharia. When they
framed the constitution, the founders included both theocratic and de-
mocratic principles and institutions. The constitution clearly recognises
the people’s right to choose who will govern them. But some institu-
tions, including Parliament and the presidency, though elected by direct
popular vote, are nevertheless subordinated to clerical oversight and
veto. This contradiction remained unresolved but unproblematic while
Ayatollah Khomeini was alive and able to mediate it.
In practice, as the revolutionary fervour subsided, neither of the initial
assumptions proved as valid or as clear-cut as the early revolutionaries
and the framers of the constitution had hoped, and soon cracks in the
system began to appear. Khomeini’s death in 1989 forced a redefinition
of the relationship between religious authority and the state. His succes-
sor as ruling jurist and Leader, Ali Khamene’i, lacked his religious
authority and charisma. There were increasing signs of popular dissatis-
faction with state policies. Either the notion of ‘Islamic’, as defined by
the ruling clerics, had to adapt to the political exigencies of a modern de-
mocracy, or the people’s choice must be restricted or bypassed, which
would mean betraying the revolution’s democratic ideals and losing the
popular support from which the Islamic Republic drew its legitimacy.
The Islamic Republic entered a new phase in which the tension between
theocracy and democracy intensified. Khamene’i increased the power of
the non-elected bodies, which now came to be identified with the theo-
cratic side of the state, at the expense of the elected bodies, representing
the democratic side, the republic. Using the institutions at his disposal,
Khamene’i expanded his power base and narrowed the scope of democ-
racy, especially by introducing a more stringent vetting of candidates for
elected office. This tactic misfired in the 1997 presidential elections,
when people rejected the candidate endorsed and supported by the re-
gime, and voted for Mohammad Khatami, the candidate who promised
to promote civil society and rule of law.
SHARIA AND NATIONAL LAW IN IRAN 365

Khatami’s election inaugurated a new round of debates and struggles

and a realignment of forces and factions. His government’s relatively
liberal policies allowed the voices of dissident intellectuals, both lay and
clerical, to be aired in the press and reach the public. Prominent among
these were the ‘New Religious Thinkers’, who displayed a refreshingly
pragmatic vigour and a willingness to engage with non-religious per-
spectives. They forced a rethinking and reworking of the founding con-
cepts of the Islamic Republic, and of the stormy and unequal marriage
it had made between theocracy and democracy.

Developing a critique of the despotic Islamic state from within an

Islamic framework, the ‘New Religious Thinkers’ sought a rights-based
political order that could open Muslim polities to dissent, tolerance,
pluralism, and women’s rights and civil liberties. They argued – like the
great Muslim jurist and philosopher al-Ghazali in the eleventh century
– that Islamic jurisprudence (feqh) is temporal and changeable; and –
like all Muslim reformers since the late nineteenth century – they
sought to establish conceptions of Islam and modernity as compatible.
But they made and shaped these ideas in a different political context. In
the Islamic Republic, as elsewhere when Islamists gained power in the
late twentieth century, ‘return to sharia’ in practice entailed legislating
and enforcing rules devised by pre-modern Muslim jurists, i.e. classical
feqh. The results have been so out of touch with social realities, with the
current sense of justice and with people’s aspirations, that ordinary peo-
ple and religious intellectuals alike came to rethink and redefine their
notions of sacred and mundane in the sharia. It is not that the sharia
has lost its sanctity; rather, the state’s ideological use of the sharia and
its penetration into the private lives of individuals have brought home
the urgent need for legal reform and for the withdrawal of the state
from the religious domain.
The 2005 presidential election marked another turning point. Having
lost the popular argument to the reformists, but buoyed by the Khatami
government’s failures in both domestic policy and foreign relations,
Khamene’i relied on the Revolutionary Guards to ensure the election of
Ahmadinejad and the consolidation of the Leader’s control of all the in-
stitutions of state. But the demand, particularly by women and the
youth, for legal and social reform and restoration of the freedoms they
had tasted could not be suppressed, and it erupted in the 2009 presi-
dential election campaign. The Green Movement that emerged after the
much-disputed re-election of Ahmadinejad, and the violent attempts by
the ‘Security Forces’ to suppress it, showed clearly the extreme polarisa-
tion that has developed, no longer between Islam and secularism, but
between despotism and democracy. Before his death in December
2009, Grand Ayatollah Montazeri, one of the founders of the Islamic
366 ZIBA MIR-HOSSEINI

Republic, and now the Green Movement’s spiritual leader, denounced

the state as a religious dictatorship and declared that it was now neither
Islamic nor a republic (Torfeh 2009).
Khatami and the reformists failed to bring tangible changes in the
structure of power; they lost many battles, and they faced many political
setbacks, but they had one major and lasting success: they demystified
the power games, which until then had been conducted in a religious
language, and the instrumental use of sharia to justify autocratic rule.
Now the notion of sharia as an ideal enabled the reformists in Iran to
argue for democracy and the rule of law and to challenge patriarchal
and despotic laws enacted in the name of Islam. They did so by appeal-
ing to Islam’s higher values and principles, and by invoking concepts
from within Islamic legal theory, notably the distinction between sharia
as ‘divine law’ and jurisprudence (feqh) as the human understanding of
the requirements of the divine law.
The reformists’ successor, the broad-based Green Movement, is still
young; at the time of writing (February 2010), it is only eight months
old, and its fortunes depend on both internal and global political develop-
ments. Some commentators are predicting the imminent collapse of the
theocratic regime, others insist that the struggle will be long and painful.
The leaders of the Movement, Mousavi, Karroubi and Khatami, as well
as different groups of supporters, have issued numerous manifestos and
lists of demands. All of them insist on an end to theocratic despotism,
free elections, the accountability of those in power, and the abolition of
legal and extra-legal discrimination between men and women and be-
tween Muslims and non-Muslims; it is too early to expect a detailed pro-
gramme for legal reform. It remains to be seen whether this latest con-
frontation, the most violent in the history of the Islamic Republic, can be
resolved by a new accommodation between the opposing and contradic-
tory elements in the constitution.

Notes

1 Parts of this chapter (as acknowledged in footnotes) are drawn from an early draft by
Albert Dekker and Maarten Barends, to whom I am most grateful. My warmest
thanks go to Richard Tapper for his support, comments, and suggestions. I am also
indebted to Jan Michiel Otto and Julie Chadbourne for valuable editorial help.
Remaining errors are mine.
2 Ziba Mir-Hosseini is an independent consultant, researcher, and writer on Middle
Eastern issues, based at the London Middle East Institute and the Centre for Middle
Eastern and Islamic Law, both at SOAS, University of London; since 2002 she has
been Hauser Global Law Visiting Professor at New York University.
3 Taqiyeh (dissimulation of belief), often identified as a Shia distinguishing feature, is
not relevant to the legal system.
SHARIA AND NATIONAL LAW IN IRAN 367

4 In this chapter, terms of Arabic or Persian origin that are commonly found in
English dictionaries, such as ulama, sharia, hijab, Koran, are given as English words.
5 Taqlid: emulation, accepting the views of previous scholars as authoritative.
6 This is one aspect in which Shiism has been linked to Sufism, with its core spiritual
relationship of teacher-disciple (pir-morid).
7 See Lambton 1964; Algar 1969; Akhavi 1980; Keddie 1983; Momen 1985; Arjomand
1988; Bayat 1991.
8 In his book Tanbih al-ummah wa tanzih al-millah (Admonition of the public and re-
finement of the people), published in 1909.
9 A faqih is an expert in feqh, jurisprudence.
10 Art. 110. Rahbar, or rahbar-e enqelab (Leader of the Revolution), is the term commonly
used, both in the constitution and in everyday political discourse in Iran, for the lead-
ing jurist (faqih).
11 Articles 91-99 set out the role, composition, and scope of activity of this council.
12 For an analytical and critical account of these processes, see Mohammadi (2008).
13 See http://www.hrw.org/reports/1990/WR90/MIDEAST.BOU-02.htm#P106_25125,
accessed 14 August 2008. For an analysis see Mayer (2000).
14 See summary of records of meetings issued under CCPR A/37/40/1982/no.324,
http://www.bayefsky.com/./html/iran_t4_ccpr.php.
15 The society was formed in 1988, when a group of clerics clustered around Karroubi
and Khatami separated from the Association of Militant Clergy (jame‘eh-ye rowha-
niyat-e mobarez), with Khomeini’s blessing. This separation was the result of the de-
bates and disagreements among the clerical ruling elite over approaches to politics,
pragmatism, ideological purity, and Iran’s relation with the world.
16 This court was formed at Ayatollah Khomeini’s order in the aftermath of the
Revolution in order to try the clerics associated with the previous regime. It was re-
vived in 1987 to try a close associate of Ayatollah Montazeri. Its formation then was
disputed as unconstitutional; and in 1988, in a letter to Parliament, Khomeini sug-
gested that the court should be aligned with the mandates of the constitution, but
only after the Iraq war ended. After Khomeini’s death (and the end of the war) the
court continued to function, coming under the control of the conservatives (Baqi
2001; Mir-Hosseini 2002).
17 For the text in English, see http://www.iranchamber.com/government/laws/constitu-
tion.php and for the text before the 1989 amendments, see http://www.servat.unibe.
ch/icl/ir00000_.html.
18 See http://zeinab.ir/index.php?option=com_content&view=frontp; see also http://
www.iranzanan.com/point_of_view/cat_6/000659.php.
19 Surat al-Nisa, verse 35, reads: ‘If ye fear a breach between them twain, appoint (two)
arbiters, one from his family, and the other from hers; If they wish for peace, Allah
will cause their reconciliation’ (Yusuf Ali translation). See Mir-Hosseini 1993, 2007
for discussion.
20 For the campaign, see http://www.we-change.org/spip.php?article19 and also http://
www.feministschool.com/english/spip.php?rubrique3.
21 See Change for Equality (2010), ‘Women fight polygamy proposal’, http://www.fore-
quality.info/english/spip.php?article645, dated 8 February; Feminist School (2009),
‘Last change on the Family Protection Bill’, http://www.feministschool.com/english/
spip.php?article344, dated 26 November.
22 See http://www.feministschool.com/spip.php?article4148.
23 S. Moqadam (2010), ‘No to Anti-Family Bill’ (in Persian), http://www.roozonline.
com/persian/news/newsitem/article/2010/february/17//-3d95903e6a.html, dated 26
February [Bahman 1388].
24 For the launch of the campaign, see http://www.wluml.org/node/5621.
368 ZIBA MIR-HOSSEINI

25 See Amnesty International (2008), ‘Iran: End executions by stoning’ http://www.am-

nesty.org/library/info/MDE13/001/2008/en.
26 This section was drafted by Albert Dekker.
27 See http://www.iranworld.com/Laws/ltr-r096.htm.
28 The book was published by Montzeri’s office in Qom and also made available on his
website: http://www.amontazeri.com/farsi/frame4.asp.
29 See http://www.hrw.org/en/news/2010/02/16/un-council-review-highlights-irans-
poor-record; see Amnesty International’s comments, http://www.amnesty.org/en/li-
brary/info/MDE13/021/2010/en.
30 See ‘UN review affirms need for more pressure to improve human rights’:
http://www.iranhumanrights.org/2010/02/un-review/ and ‘Ebadi appeals to inter-
national community to counter Iran’s tragedy’: http://www.rferl.org/content/
Ebadi_Appeals_For_Help_To_Counter_Iran_Crackdown/1956527.html.
31 For further analysis, see e.g. Farhi 2003; Mir-Hosseini & Tapper 2006.

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9 Sharia and national law in
Pakistan1

Martin Lau2

Abstract

The creation of Pakistan in 1947 satisfied the demand of British

India’s Muslims for a homeland at the end of colonial rule but left
unresolved the nature of the newly founded state: had it been
founded to enable India’s Muslims to live in accordance with
Islamic law or was its primary purpose to protect them against
the fate of living as a religious minority in a Hindu majority state?
Until the mid 1970s, Pakistan’s political elites fudged the issue by
allocating a largely symbolic role to Islam in the constitutions of
1956, 1962 and 1973 but retaining the colonial legacy of Islamic fa-
mily law. It was only in 1979 that the military dictator Zia ul-Haq
purported to turn Pakistan into an Islamic state by imposing
Islamic criminal laws and creating specialist Islamic courts em-
powered to strike down laws deemed contrary to Islam.
The impact of Zia’s measures has been profound: despite the
opposition of many of the mainstream political parties to the Zia
era Islamic laws and institutions, any proposal for reform triggers
popular protests, instigated by small, conservative, Islamic par-
ties. It is mainly the country’s higher judiciary which, together with
the government, holds attempts at further Islamisation measures
in check, and which reforms those areas of law that continue to
be governed by Islamic law. The judiciary’s ability to counter the
forces of Islamisation reflects its growing importance as a check
on governmental lawlessness and protector of human rights.
Table of contents
9.1 The period until 1920. From diversity to uniformity 376
Early history 376
The impact of colonialism 377
Religion, law and Anglo-Mohammadan law 380
Islamic law and political identity 382
9.2 The period from 1920 until 1965. The realisation of
Islamic nationalism 385
The demand for Pakistan 385
Muslim personal law 386
1947: The creation of Pakistan 387
The framing of Pakistan’s constitution: the Objectives
Resolution 389
The Constitution of 1956 390
The Constitution of 1962 392
9.3 The period from 1965 until 1985. The birth of Bangladesh
and the Islamisation of Pakistan 394
The partition of Pakistan 394
The Constitution 1973 395
Using Islam: the Ahmadis 396
Islam and martial law: the Zia era 398
Islam and Pakistan’s judiciary 399
9.4 The period from 1985 until the present. The rise and
fall of democracy 400
New orientations of judicial Islamisation 400
Islam and democracy 402
The end of democracy: Musharraf’s rule 403
9.5 Constitutional law 407
State ideology and constitution 407
The constitution and the rule of law 409
Islamic precepts as a basic norm 410
The Federal Shariat Court and the Council of Islamic
Ideology 411
The judiciary and the Islamisation of laws 412
The politics of Islamisation 413
9.6 Family and inheritance law 415
The Muslim Family Laws Ordinance 1961 415
Inheritance law 417
9.7 Criminal law 417
The Hudood Ordinances and the Women’s Protection Bill 418
The blasphemy laws 419
The Ahmadi-specific criminal laws of 1984 420
Islamic criminal law of murder and assault 420
9.8 Other areas of law 420
9.9 International treaty obligations and human rights 421
9.10 Conclusion 423

Notes 425
Bibliography 430
376 MARTIN LAU

The independence of British India in 1947, and its subsequent partition, led
to the founding of the Islamic Republic of Pakistan, a state which was itself
partitioned into two parts, namely West Pakistan and East Pakistan.
Following a civil war, East Pakistan declared independence and became
Bangladesh in 1971. It is the former western half which retained the name
Pakistan and which is the subject of this chapter. Its current population
numbers close to 174 million people and is comprised of multiple ethnic
groups, the main ones being Pashtun, Punjabi, Sindhi, Baloch, and Muhajir.
Pakistanis are nearly all Muslim (97%), the vast majority of which are Sunni
(77%) and the remainder Shia (20%). Christians, Hindus, and Parsees
belong to religious minority groups (3%). Under the laws of Pakistan,
members of the Ahmadiyya community are also considered to be a non-
Muslim religious minority. While Urdu is the official language of Pakistan,
only eight percent of the population actually speaks it as their first language.
In contrast, the Punjabi (44%) and Sindhi (14%) languages are much more
widely spoken. The lingua franca of the Pakistani elite and the state
apparatus is English.

(Source: Bartleby 2010)

9.1 The period until 1920

From diversity to uniformity

Early history
Pakistan came into existence in 1947 but its laws and legal traditions
form part of the wider history of South Asian civilisations and cultures.
This history began about 40,000 years ago, when humans migrated
from East Africa to North India, expanding their presence gradually to
the South (Talbot 1998, Wolpert 2009). The transition from hunter-
gatherers to settled communities who relied on farming, growing wheat
and barley and keeping goats and sheep, occurred in the hills of
Baluchistan, now part of Pakistan, around 8000 BC. Some of the sym-
bols associated with Hinduism can be traced back to these early com-
munities. Clay figurines of mother goddesses and humped bulls as well
as phallic symbols made of stone are reminders of the ancient roots of
the Hindu religion. Close to these hills, along the fertile valley of the
Indus river, emerged the ancient civilisation of Harappa and Mohenjo-
daru, which lasted from about 2500 to 1600 BC. Covering an area of
some five million square miles, with urban centres housing up to
35,000 inhabitants, the Indus valley civilisation was based on irrigated
SHARIA AND NATIONAL LAW IN PAKISTAN 377

agriculture and a commercial economy, which was interwoven with re-

gional trade stretching as far as Sumeria (Wolpert 2009: 19).
Changes of the ecology and of the course of the Indus river lead to
the decline and eventual disappearance of the Indus valley civilisation.
The migration of the Aryan Indo-European people from areas around
the Caspian and the Black Sea between 1500 and 1000 BC marks the
beginning of the Hindu religion and ancient Hindu law. The Aryans
brought to India herds of cattle and domesticated horses, as well as
their own language, Sanskrit. The early Aryans did not use bricks, knew
no system of writing, and the physical traces they left behind consist
mainly of bronze weapons, bows and arrows. Their enduring legacy to
Indian culture is their religion. An orally transmitted body of texts,
known as the Rig Vedas, the books of knowledge, consisting of Sanskrit
hymns, which are addressed to the Aryan gods to solicit their favours,
are the oldest ingredients of Hindu religion. The texts, written down for
the first time around 600 BC, also testify to the ancient origins of the
Hindu caste system and the myths of epic battles, such as the
Mahabharata, which continue to be prominent elements of modern
Hindu and South Asian culture.
Buddhism and Jainism emerged as religious reforms of Hinduism in
the fifth century BC but it took another 1200 years before Islam, South
Asia’s second most important religion, arrived on the Indian sub-conti-
nent. Muslim traders made contact with communities along the West
Indian Malabar coast in the early seventh century CE (Engineer, 2006).
The first territorial presence of Muslims was established through the
conquest of Sindh by Muhammad bin Qasim, who claimed the pro-
vince of Sindh in present-day Pakistan for the Umayyad Caliphate. In
the tenth century Mahmud of Ghazni, in present-day Afghanistan, con-
quered Punjab and made it part of the Ghaznavid Empire. Another suc-
cessful invasion from the North, lead by Muhammad of Ghor, lead to
the formation of the Delhi Sultanate in the twelfth century. The emer-
gence of Islamic dynasties in the northern parts of India culminated in
the establishment of the Mughal empire in the sixteenth century. In the
course of two centuries the Mughals created an empire which encom-
passed most of the northern parts of India and whose administrative
structures proved so efficient that many of them were adopted by the
East India Company, when in the course of the seventeenth century it
displaced, and eventually, in 1857, removed the Mughal dynasty from
power.

The impact of colonialism

The arrival of the British, in the shape of the East India Company, in
the seventeenth century forms the starting point of any discussion of
378 MARTIN LAU

modern Indian and Pakistani law. The origins of the system of courts,
legal procedures and much of the substantive law of both India and
Pakistan can be traced back to British rule. The lasting influence of the
legacy of colonialism on the legal systems of India and Pakistan can,
however, not obscure the fact, that the colonial legal system emerged in
a process of interaction with indigenous laws and cultures. This interac-
tion becomes most visible in Pakistan’s family laws, which originated
from a colonial attempt to apply Islamic law to its Muslim subjects
(Kolff 1992, Menski 1997).
Prior to the arrival of the British, South Asian laws reflected the poli-
tical, economic, religious and cultural diversity of the Indian sub-conti-
nent. The spectrum of political organisations ranged from the centra-
lised system of administration of the Moghul empire, powerful Hindu
and Sikh kingdoms and small princely states ruled by Hindu and
Muslim dynasties, to small, self-governing communities of hunter-gath-
erers in India’s mountains and jungles. The mainstay of the pre-indus-
trial economies of India was agricultural, carried out under diverse sys-
tems of land tenures and holdings and as a result the main revenue of
most Indian rulers was derived from imposing tax on land ownership.
Regional trade, the production of goods such as cotton, and the pre-
sence of highly skilled craftsmen and artisans in India’s busy cities
meant that in the seventeenth century, India’s economies and wealth
were on par with that of many European countries.
The legal cultures of pre-colonial India matched the diversity found
in all other areas of life. Despite this diversity, it is possible to identify
religion as an important element of India’s legal traditions. Both Islam
and Hinduism contained within themselves a rich body of legal pre-
cepts and prescriptions, and equally many rulers defined and legiti-
mised their power with reference to religion. Religion also played an
important part in creating and maintaining social order, for instance in
the form of the Hindu caste system, or in guiding the conduct of indivi-
dual believers. Legal culture was also greatly influenced by locality: the
further a community was removed from a centre of political power, the
weaker the writ of the ruler. The absence of centralised political power
or its inability or unwillingness to impose a unified legal system on the
populace meant that in many areas, from rural areas to urban commu-
nities, localised forms of dispute resolution were the norm rather than
the exception. These local fora for dispute resolution could coalesce
around religious elements, as for instance in the case of Hindu caste
councils and panchayats, or around tribal allegiance, such as the jirgas,
i.e. councils of elders of some of North India’s Muslim communities.
The rules applied by this diverse mix of legal institutions was equally di-
verse. Whilst religious norms were important, they were often supple-
mented by local customs. As a result, the notion of parts of India
SHARIA AND NATIONAL LAW IN PAKISTAN 379

governed by Hindu or Islamic law was a colonial invention, never

matched by legal reality. Diversity and fluidity were the hallmarks of
pre-colonial legal cultures, with religion playing an important but not
overriding role (Menski 1997).
The East India Company (EIC) added another element to this rich
mix of legal traditions, but in no way displaced them. The persistence
of India’s legal traditions in the face of conquest was a result of a com-
bination of reasons. First and foremost was the way in which India was
conquered: the EIC had began its presence in India as a trading com-
pany, establishing trading posts, the so-called ‘factories’, along India’s
coastline. Whilst its Charter of 1600 allowed it to make and administer
laws in its ‘territories’, this power was confined to the areas directly
controlled and administered by the EIC itself (Ali 2000: 141).3 As a re-
sult, the EIC applied its own laws only to the trading posts themselves,
but recognised local laws and cultures outside the so-called presidency
towns of Madras, Bombay and Calcutta. The confinement of English
and EIC-made laws to these presidencies also had practical reasons.
Whilst the EIC was able to establish political control over an ever in-
creasing portion of India’s population, it lacked the means to impose its
own legal system on them. Indeed, attempting to do so could have en-
dangered its hold over a growing number of subjects as well its ability
to generate a profit for its shareholders and employees.
By the beginning of the nineteenth century the EIC controlled about
two thirds of India. A trading company had become India’s most power-
ful ruler, administering and governing a vast territory populated by an
equally vast diversity of people, cultures, and religions. In this period of
conquest, Indian laws had not remained untouched. The EIC primary
purpose and function, namely to make money, had a direct impact on
two distinct areas of law. Firstly, there was the need to maintain law and
order. This was achieved by creating a body of criminal laws, often
modelled on English precedents, designed to contain any challenges to
its rule (Fisch 1983). Secondly, there was the need to make money. The
acquisition of large tracts of land and people changed the economic
character of the EIC. No longer was it merely a trading company but
also a collector of land revenue, having assumed this power from the
rulers it had displaced. The collection of land revenue made it impera-
tive to identify in a legally enforceable manner an individual who was li-
able to pay tax for a particular piece of land. Equally, the legal system
had to be able to adjudicate disputes over the ownership of land. The
colonial legal system thus emerged in a piecemeal and disjointed fash-
ion, being propelled by the economic and political concerns of the EIC.
380 MARTIN LAU

Religion, law and Anglo-Mohammadan law

At least in theory, the EIC left undisturbed the laws and legal institu-
tions which were not of direct interest to its rule. This is reflected in
the declaration of Warren Hastings, the first Governor-General of the
Bengal Presidency, in 1772, according to which in the courts of the EIC
‘in all suits regarding inheritance, marriage, caste and other religious
usages and institutions, the laws of the Koran with respect to the
Mohammedans and those of the shasters with respect to the Gentoos
[Hindus] shall invariably adhered to; on all such occasions the Moulvies
or Brahmins shall respectively attend to expound the law, and they shall
sign the report and assist in passing the decree’ (Rudolph, S. and
Rudolph, L. 2001). The notion of a mixed legal system, consisting of a
unified hierarchy of colonial courts that administered a diverse system
of substantive laws, depending on the area of law and the religion of
the parties at issue, would, at first glance, suggest that at least in the
area of family law, the indigenous laws of India’s population would sur-
vive the impact of colonialism intact.
In practice, however, the arrival of colonial courts, staffed by British
judges and administered by a colonial government, left a deep impact
on the many manifestations of India’s indigenous family laws. The
courts of the EIC were popular with the Indian population, so much so
that in the course of the first half of the nineteenth century many were
over-burdened with the number of suits filed by the colonial subjects
and a system of court fees was introduced to stem the flood of litiga-
tion. The popularity of colonial courts for the adjudication of a wide
range of disputes, including those concerned with areas of law to be
decided in accordance with Hindu or Islamic law, posed a challenge to
judges who had no knowledge of either Hindu or Islamic laws and jur-
isprudence. Until 1864, judges of the EIC courts were assisted by ‘ex-
perts’ in Hindu and Islamic law; invariably locally prominent Hindu
priests and Muslims learned in classical Islamic law would render opi-
nions on the applicable religious law. As a result, elements of local, cus-
tomary law were gradually replaced with a more rigid, orthodox, text-
based interpretation of Hindu and Islamic law. This process of replace-
ment was aided by the common law background of the colonial judi-
ciary who were used to a system of binding precedence and as a result
relied on previously decided cases whenever questions of indigenous
law came before them.
In addition, there was a growing number of translations of treatises
on both Hindu and Islamic law, which were increasingly used by judges
to determine the ‘personal law’ applicable to a dispute. By 1864, the
availability of a body of case-law and textbooks was judged sufficient to
be able to dispense with the services of the indigenous experts of
SHARIA AND NATIONAL LAW IN PAKISTAN 381

Hindu and Islamic law: since then judges themselves determined, inter-
preted and applied the religiously based system of personal laws.
By the middle of the nineteenth century the colonial legal system,
which had emerged more by accident than long-term planning, was
marked by three distinctive features. Firstly, it was built on a hierarchy
of colonial, ‘modern’, courts, whose judgements were enforced by a
powerful state. Secondly, it incorporated two sets of laws, namely reli-
giously based family laws and uniform civil and criminal laws. Lastly,
the legal system was overseen by a colonial government, that assumed
‘a superior reformist posture within the framework of a “holding opera-
tion” to keep the peace’ (Dhavan 2001: 308.). The reformist stance of
the colonial government was a cautious one, with some practices, such
as sati4 and child marriage, being outlawed (Ferguson 2003: 134). The
reluctance to interfere with religious beliefs of the indigenous popula-
tion, and hence with their religiously based family laws, was re-enforced
by the uprising of 1857.
The so-called ‘mutiny’ of 1857 had been preceded by the gradual infu-
sion of Christian missionary zeal in the policies of the EIC. Whilst the
eighteenth century had been one of unashamed lust for profit, the first
decades of the nineteenth century witnessed the rise of the Evangelical
movement in Britain, which would also make its presence felt in the
India of the EIC. The policy of non-interference with indigenous reli-
gions softened and the ban on Christian missionaries working in India
was lifted in 1813. The missionaries’s success in converting Indians was
limited, but their impact on EIC policy was very visible. Laws were en-
acted to promote conversions, such as the Caste Disabilities Removal
Act 1850, which preserved the rights of inheritance under the personal
law that a convert had held prior to conversion, and campaigns against
‘barbaric’ practices, for instance female infanticide, were prominently
pursued. The 1857 uprising, triggered by the refusal of Indian soldiers
to bite off the ends of newly introduced cartridges that had been treated
with animal fat, was interpreted as a reaction against a British plan to
Christianise India.
The end of the 1857 uprising not only spelt the end of the Mughal
empire but also that of EIC rule: in 1858 India became a crown colony
of British India. The mutineers had proclaimed that they were moti-
vated by a desire to protect Islam and to rid India of infidels. In order
to prevent another mutiny, Queen Victoria publicly proclaimed that the
crown would ‘abstain from all interference with the religious belief or
worship of any of our subjects, on pain of our highest displeasure’ and
‘that generally, in framing and administering the law, due regard be
paid to the ancient rights, usages, and customs of India’.5
382 MARTIN LAU

Islamic law and political identity

The official policy of non-interference with the religions and customs of
the colonial subjects was accompanied by conscious efforts to moder-
nise the laws of British India. Over the next four decades an all-encom-
passing codification of all areas of law, except those concerned with the
personal laws of the native population, resulted in a set of statutory laws
which to this day apply in an almost unchanged form in the successor
nations of British India, i.e. Pakistan, India and Bangladesh. First came
the Indian Penal Code 1860, followed by the Contract Act 1872 and the
Evidence Act 1872. Around the turn of the nineteenth century two acts
were enacted governing the procedures to be applied in criminal and ci-
vil trials.6
The continuation of the system of personal laws, in line with Queen
Victoria’s proclamation, created not only distinct bodies of Hindu and
Islamic law but also contributed to the emergence of distinct Hindu
and Muslim political communities. The latter was not just the outcome
of unequal legal treatment, but also of a conscious colonial policy of ‘di-
vide and rule’, meant to prevent a repeat of the rebellion of 1857.
Hindus were favoured when it came to employment in the Indian civil
service, being regarded as better educated and more willing to cooperate
with the colonial state. Muslims, on the other hand, faced a crisis of
self-confidence. The defeat of 1857 had resulted in the dismantling of
the Mughal empire, the execution or banishment of many prominent
members of the ulama, and the relegation of Muslims to a community
distrusted by its colonial rulers. In its reaction to this crisis, the Muslim
community was divided in outlook but united in method: both conser-
vative and progressive saw education as the key to regaining their pre-
1857 status. Conservative Muslims founded religious seminaries, chief
among them the Deobandi school near Delhi, which used British edu-
cational methods, such as a sequential curriculum, organised classes
and paid teaching staff, in order to reform the Muslim community.
Their objective was not participation in the colonial enterprise but the
moral reform of Muslims, encouraging them to shed un-Islamic prac-
tices and to adhere to a literal interpretation of the Koran. The liberal
elements amongst the Muslim community also addressed the issue of
education, but aimed at equipping young Muslims with the means to
compete with their Hindu counterparts by acquiring Western knowl-
edge and skills. Sir Sayyid Ahmed Khan’s Islamic University in Aligarh,
founded in 1874, became the focal point for the modernisation of
Islamic thought, educating a generation of young Muslims, who would,
in the twentieth century, become ardent supporters of the Indian na-
tional movement.
SHARIA AND NATIONAL LAW IN PAKISTAN 383

The British policy of divide and rule became most visible in the sys-
tem of separate electorates for Muslims and Hindus, which was a fea-
ture of all forms of representative self-government conceded by the co-
lonial government. The policy fostered the conviction of Muslim politi-
cal elites that they were different and separate from the Hindu subjects
of the colony. By the late 1930s, this conviction matured into the belief
that the Muslims of British India were not just in terms of religion dif-
ferent from Hindus, but constituted a distinct nation, entitled to estab-
lish a country of their own as and when the British granted indepen-
dence to India.
The grant of very limited rights of self-governance at the local level at
the end of the nineteenth century was not sufficient to stem the rising
tide of the Indian national movement. From its inception, the move-
ment was divided along religious lines, albeit that the two communities
initially joined hands in their campaign for self-government. The
Indian National Congress, founded in 1885, was in theory a secular
body and open to all of India’s creeds and religions. Nevertheless,
Hindus formed the vast majority of its members. Founded by intellec-
tuals, lawyers and social reformers, it was transformed into a mass
movement under the leadership of Mahatma Gandhi, who joined the
Indian National Congress upon his return from South Africa in 1916.
In 1906, Muslims followed suit, founding a representative body of their
own, the All India Muslim League. Many of the founding members
were inspired by the modernistic outlook of Sir Sayyed Ahmed Khan,
the founder of the Aligarh Islamic University. Its initial aims were mod-
est: rather than asking for self-government the Muslim League resolved
to further ‘the protection and advancement of our political rights and
interests, but without prejudice to the traditional loyalty of Musalmans
to the Government, and goodwill to our Hindu neighbours’. The
Muslim League soon became an important mouthpiece of the Muslim
community, albeit that it never appealed to British India’s conservative
ulama, who regarded it as a secular organisation, unlikely to promote
the cause of Islam.
The first two decades of the Indian national movement were marked
by a substantial degree of collaboration between the Muslim League
and the Indian National Congress. The two organisations represented
different constituencies, with the Indian National Congress managing
to transform itself into mass movement representing not only intellec-
tuals but also the largely Hindu peasantry. The Muslim League attracted
in the main Muslim professionals, especially those who lived in Hindu
majority provinces. The early affinities of the two organisations is best
exemplified in the person of Muhammad Ali Jinnah, the founder of
Pakistan. Jinnah had started his political career as a member of the
Indian National Congress, which he joined in 1886, becoming a
384 MARTIN LAU

member of the Muslim League only in 1913. Until 1920 he was simulta-
neously a member of Congress, and, from 1916 onwards, the leader of
the Muslim League. Both organisations stood united in their goal of
‘home rule’ and despite representing different communities, they en-
tered into express alliances to further the cause of self-government. In
1916, the Muslim League and the Indian National Congress entered
into the ‘Congress-League Joint Scheme of Reforms’, better known as
the Lucknow Pact and issued a joint statement calling on the British to
respect the right to self-determination of the Indian population.
Congress and Muslim League agreed to share power in the executive
and legislative assemblies according to a formula which gave Hindus
two-third and Muslims one-third representation in these bodies. On re-
ligious measures, the Lucknow Pact stipulated that they could only be
undertaken if they had the support of at least three-fourth of the mem-
bers of the concerned community. In response, the British conceded
some reforms, for instance extending employment opportunities in its
civil service and allowing for limited forms of self-government at the lo-
cal and provincial level. But these initiatives did little to mitigate popu-
lar grievances. The basis of the discontent – the colonial domination –
remained unchanged.
Political violence in the form of terrorism in the 1910s and 1920s
was met by ever harsher measures adopted by the colonial authorities
to restore and maintain law and order. The most infamous of these
measures was the draconian Rowlatt Act in 1919 which dispensed with
many of the procedural safeguards of the criminal law in the case of ter-
ror related offences. Muhammad Ali Jinnah resigned from the Imperial
Legislative Assembly when the Rowlatt Act was passed by the govern-
ment majority in the face of the united opposition of its Indian mem-
bers, who had voted against it.7 The First World War, in which the
British fought against Turkish Muslims, produced the last occasion for
Muslim-Hindu unity. Under Gandhi’s leadership the Indian National
Congress supported the Khilafat (Caliphate) Movement (1919-1925),
which campaigned for the protection of the Ottoman empire. The
Khilafat movement, concerned with an Islamic cause, also marked the
first active participation of the traditional ulama in the independence
movement, which, for the first time, used Islam as a symbol of political
mass communication (Esposito 1998: 93). The Muslim-Hindu entente
gave rise to unprecedented manifestations of communal harmony and
unity, perhaps best illustrated by an event which occurred on 4 April
1919, when a Hindu, Swami Shraddhanand, was asked by a delegation
of Muslims to address about 30,000 Muslim worshippers, who had as-
sembled in the grounds of Delhi’s main mosque, the Jama Masjid. He
accepted the invitation, recited from the Vedas and received thunderous
applause (Singh 2009: 110). The defeat of the Ottoman empire in 1924
SHARIA AND NATIONAL LAW IN PAKISTAN 385

and the subsequent abolition of the Caliphate brought the Hindu-

Muslim entente to an end.

9.2 The period from 1920 until 1965

The realisation of Islamic nationalism

The demand for Pakistan

The 1920s were marked by an increase of communal tension as well as
distrust between the leadership of Congress and Muslim League. In
1920, Jinnah resigned as a member of Congress in protest against
Gandhi’s civil disobedience movement, which he regarded as a danger-
ously populist and illegal campaign, likely to lead to anarchy and a
breakdown of law and order. Under Jinnah’s leadership the Muslim
League assumed the role as the sole representative of British India’s
Muslims in opposition to Congress, which relentlessly pursued the ulti-
mate goal of home rule and independence on the platform of mass ac-
tion and agitation. The colonial government reacted with a combination
of repressive measures, including attempts to silence Congress by im-
prisoning its leadership, and political concessions, such as the
Government of India Act 1935, which granted self-government at pro-
vincial level, albeit under the supervision of the central government.
Provincial elections under the 1935 Act spelt the end of any hope for
a resumption of the Hindu-Muslim entente: Congress won a resound-
ing victory in the Hindu majority provinces but refused to share power
with the Muslim League. To Jinnah, this stance amounted to proof that
Congress could not be trusted to share power with Muslims as and
when British India was granted independence. From then onwards, the
Muslim League’s demand for independence was a qualified one: if
there was to be self-government, it had to take shape in a form which
would protect Muslims against a Hindu majority. By 1940 this objective
had matured into the two nation-theory: Hindus and Muslims were so
different in character that they could never form one nation. According
to Jinnah, the creation of an independent state, to be called Pakistan,
was the only way to protect Muslims against the prospect of living un-
der Hindu rule.
The claim that Muslims constituted a separate nation made it impera-
tive for Muslim politicians to create a distinct Muslim political and also
legal identity. The latter was threatened by the recognition and applica-
tion of local customs by British Indian courts in the area of family law.
Whilst in principle the large corpus of reported decisions dealing with
Islamic family law was based on the application of Quran and Sunnah
– in line with the resolutions of Warren Hastings in 1772 and Queen
386 MARTIN LAU

Victoria in 1858 – in practice the Islamic family law produced by colo-

nial courts was far more amorphous. In many cases, especially those
concerned with disputes over land, colonial courts had also recognised
local customs as the applicable law. This posed a challenge to the
Muslim League: if Muslims were to be governed by local customs,
which were by definition determined and proven by reference to the
customary usages prevalent in a locality, how could they be distin-
guished from the non-Muslims of the same area? Did a Muslim loose
his identity as a Muslim by ordering his life in accordance with laws
which were not in any way connected to his religious identity as
Muslim but were frequently based on Hindu legal traditions, such as
the exclusion of females from the right to inherit from the estate of the
deceased?

Muslim personal law

The demands for an Islamisation of British India’s family laws provided
the answer to these questions: Muslims had to be governed by Islamic
law if they were to form a community which was distinct and separate
from their Hindu counterparts (Williams 2006: 83-91). Success came
in 1937, when the Muslim members of the Imperial Legislative
Assembly passed the Muslim Personal Law (Shariat) Application Act
1937. Section 2 of the Act provides that:

Notwithstanding any customs or usage to the contrary, in all

questions (save questions relating to agricultural land) regarding
intestate succession, special property of females, including per-
sonal property inherited or obtained under contract or gift or
any other provision of Personal Law, marriage, dissolution of
marriage, including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust proper-
ties, and wakfs (other than charities and charitable institutions
and charitable and religion endowments) the rule of decision in
cases where the parties are Muslims shall be the Muslim
Personal Law (Shariat).

The 1937 Act satisfied the aspiration of British India’s Muslims to be

governed by a body of family laws which was distinctly and recognisably
Islamic. However, it was not an unqualified success: any question per-
taining to agricultural law was excluded from the application of the Act
and hence could, if the parties so desired, be governed by local customs.
In practice, this often involved the application of rules of inheritance
which departed from the Islamic law of succession in that they excluded
females from the inheritance.8
SHARIA AND NATIONAL LAW IN PAKISTAN 387

A second measure to foster a distinct legal identity of British India’s

Muslims was the passage of the Dissolution of Muslim Marriages Act
1939. The 1939 Act enumerates the grounds on which a Muslim wo-
man can obtain a decree for the dissolution of her marriage. Viewed
from a gender perspective the 1939 Act can be regarded as a measure
to improve the legal position of Muslim wives. However, the main pur-
pose of the 1939 Act was a political one, namely to prevent Muslim wi-
ves from dissolving their marriage by converting to Hinduism. Section
4 of the 1939 Act provides that ‘The renunciation of Islam by a married
Muslim woman on her conversion to a faith other than Islam shall not
by itself operate to dissolve her marriage’.9
The purification of Islamic family law and the creation of a distinct
legal identity of Muslims in the closing years of colonial India can be
regarded as the first phase of the Islamisation of laws in Pakistan. In
1947, when Pakistan came into existence, the country inherited a body
of Muslim personal laws, commonly referred to as Anglo-
Mohammadan law, which was in the process of being returned to the
principles of classical Islamic law. The birth of Pakistan in 1947 was not
the outcome of demand for the creation of an Islamic state, but implicit
in the demand for a homeland for British India’s Muslims was a pro-
mise that Muslims would be governed by Islamic family laws not based
on local, and potentially un-Islamic, customs and usages, but the princi-
ples of sharia.
From today’s perspective somewhat counter-intuitively, the majority
of conservative and orthodox Islamic parties and movements refused to
join Jinnah’s call for the creation of Pakistan, instead aligning them-
selves with the Indian National Congress or staying out of politics alto-
gether. Although Jinnah himself avoided any firm promise to create an
Islamic state, the Muslim League regularly used religious appeals in its
provincial elections campaigns during the 1940s, and it also endeavored
to bring Islamic scholars into its ranks. However, these attempts were
only partially successful. In October 1945 the Muslim League managed
to convene a conference in Calcutta of several prominent members of
the ulama. The outcome of this conference was the founding of the All-
India Jamiaat-i Ulema-i Islam, which organised party conferences in
support of Pakistan (Pirzada 2000: 10). Its president, Allama Uthmani,
later became a member of the Pakistan Constituent Assembly, having
run on the Muslim League ticket in the elections of 1946.

1947: The creation of Pakistan

Pakistan emerged as an independent state on 15 August 1947, the same
day as its neighbour India.10 As a matter of law, the new state owed its
existence to the provisions of a British act of parliament, the Indian
388 MARTIN LAU

Independence Act of 1947. This act not only granted independence, but
also determined the shape of the new nation’s legal system immediately
following independence, providing in section 18(3) for the continued va-
lidity of all colonial laws. For a British parliament to make provisions
for the content of a legal system of an independent state would seem to
run counter to the very notion of sovereignty, were it not for section 6
of the same act, which provided in clear terms that ‘The legislature of
each of the new Dominions shall have full power to make laws for that
Dominion, including laws having extra-territorial operation’.
Having been granted full powers to pass any law, Pakistan – at least
as a matter of law – was a fully independent and sovereign state at the
stroke of midnight of 15 August 1947. In actual practice, however, it was
section 18(3), rather than section 6, of the Indian Independence Act that
would occupy the more prominent role in the development of
Pakistan’s legal system. For almost ten years, until the adoption of the
Constitution of 1956, the country was governed by the provisions of the
1935 Government of India Act, as modified by the Indian Independence
Act, and any law passed by the Constituent Assembly,11 which also acted
as the country’s legislature during this long period of transition. The
odd result was that Pakistan, having come into existence after a long
and hard struggle to establish a homeland for India’s Muslims, contin-
ued to be governed by a legal system that had been adopted with hardly
any modifications from its colonial past. There was no tabula rasa, with
the slate being wiped clean of the vestiges of colonialism at the earliest
opportunity following independence, to be replaced by Islamic law, or
an Islamic form of government, in whatever shape.
Was the decision to continue to be governed by colonial laws made
by default, or had this result been planned by the founders of Pakistan?
This question may seem academic, given that Pakistan has been inde-
pendent for over sixty years, were it not for the fact that there is still no
political consensus on the role of Islam in the legal system. The lack of
consensus becomes visible in the frictions and controversies that ac-
company any measure designed to introduce even minor changes to
the Islamic criminal laws promulgated in 1979, or in the debates over
the introduction of an Islamic banking and finance system. On one side
of the spectrum are those who argue that Pakistan had been founded as
an ‘ideological state’, to be governed by Islamic law. From this perspec-
tive, any attempt to change this legacy would amount to a denial of the
legitimacy of the state itself, a betrayal of those Muslims who had been
willing to sacrifice their lives for the creation of an Islamic state.
Conversely, there are those who argue that although Pakistan was
founded as a homeland for the Muslims of British India, it was con-
ceived as a secular rather than a religious state (Metcalf 2004: 21).
Writing in 1955, some eight years after Pakistan gained independence,
SHARIA AND NATIONAL LAW IN PAKISTAN 389

G.W. Choudhury observed that the failure to adopt a constitution was

due to the fact that ‘the framers of the constitution were faced with the
problem of producing a document that would be satisfactory to secular-
ists and sectarians alike’ (Choudhury 1955: 591).

The framing of Pakistan’s constitution: the Objectives Resolution

The Objectives Resolution was the first product of the Constituent
Assembly of Pakistan and was meant to guide the drafting of Pakistan’s
first constitution. In structure and tone it mirrored that of India’s
Objectives Resolution,12 but its references to Islam were regarded con-
troversial, especially amongst the non-Muslim members of the
Constituent Assembly.13 From today’s perspective, the discussions sur-
rounding the adoption of Objectives Resolution have a certain air of
déjà vu, given that the principle arguments, and tensions, have re-
mained the same over the past 60 years: is Pakistan’s legal order a se-
cular one, with the state taking no interest in the religions of its citizens
apart from allowing them to practice them? Or is Pakistan an Islamic
state, which gives preferential treatment to its Muslim citizens?
The main concern for non-Muslims was not the promise that
Muslims should be enabled to order their lives in accordance with
Islam – after all this had been the colonial practice as visible in the sys-
tem of personal laws for both Muslims and Hindus – but the
Objectives Resolution’s opening sentence which provided that:
‘Whereas sovereignty over the entire universe belongs to God Almighty
alone and the authority which He has delegated to the State of Pakistan
through its people for being exercised within the limits prescribed by
Him is a sacred trust; This Constituent Assembly representing the peo-
ple of Pakistan resolves to frame a constitution for the sovereign inde-
pendent State of Pakistan.’ The non-Muslim members of the
Constituent Assembly claimed that the Objectives Resolution envisaged
the creation of an Islam state and was in breach of the promises made
by the founder of Pakistan, Mohammed Ali Jinnah, who had died pre-
maturely on 11 September 1948 and who had taken no part in the draft-
ing of the Resolution. His vision, they charged, had been to create a se-
cular state in which religion was to be regarded as an entirely private
matter. The leader of Pakistan’s Congress Party, Chattopadhaya, referred
to his heritage as follows:

Now what will be the result of this Resolution? I sadly remind

myself of the great words of the Quaid-i-Azam that in state af-
fairs the Hindu will cease to be a Hindu; the Muslim shall cease
to be a Muslim. But alas, so soon after his demise what you do
is that you virtually declare a State religion! You are determined
390 MARTIN LAU

to create a Herrenvolk. It was perhaps bound to be so, when un-

like the Quaid-i-Azam—with whom I was privileged to be asso-
ciated for a great many years in the Indian National Congress—
you felt your incapacity to separate politics from religion, which
the modern world so universally does. You could not get over
the old world way of thinking. What I hear in this Resolution is
not the voice of the great creator of Pakistan, the Quaid-i-Azam
(may his soul rest in peace), nor even that of the Prime Minister
of Pakistan, the Honourable Mr. Liaquat Ali Khan, but of the
Ulemas of the land.14

The concerns of the Hindu members of the Constituent Assembly were

to prove entirely correct, albeit that the erosion of the rights of minori-
ties and the creation of an Islamic state took place over a long period of
time. Pakistan’s first constitution was only completed and adopted in
1956. Until then, the laws inherited from British India served as a tem-
porary constitution and constituted the bulk of the new country’s sub-
stantive laws.15

The Constitution of 1956

Having adopted the Objectives Resolution against the wishes of its min-
ority members, the Constituent Assembly embarked on the task of
drafting the constitution. It turned out to be an arduous and controver-
sial undertaking. In the period from 1949 and 1956 no less than three
draft constitutions were prepared and the Constituent Assembly itself
was dismissed and re-constituted on a different basis in 1954. The de-
marcation of the role of Islam in the new constitutional order was one
reason for the slowness, but a more important cause of the delay was
the difficulty to unite West and East Pakistan. The two units of Pakistan
were separated by more than one thousand miles – by ship it was
quicker to get from Karachi to Marseille than to Chittagong – and the
physical divide was matched by differences in culture, language, cus-
toms, and economic conditions.
A first draft constitution was produced in September 1950. Its
Islamic provisions were purely symbolic: the Objectives Resolution was
to serve as a preamble, and there was to be ‘compulsory teaching of the
Holy Quran to the Muslims’ (Choudhury 1967: 34). Under pressure
from an increasingly vociferous Islamic opposition the subsequent
drafts of the constitution incorporated the principle that the laws of
Pakistan should be in accordance with Islam. Two possible models
emerged to fulfill this requirement. Firstly, the creation of a mechanism
of judicial review which would allow the higher courts to strike down
laws deemed not to be in accordance with Islam. In the alternative, the
SHARIA AND NATIONAL LAW IN PAKISTAN 391

obligation to make the body of substantive laws conform with Islam

could be imposed on the law-makers themselves, i.e. parliament.16
The second draft constitution, presented to the Pakistani public in
December 1952 adopted the latter approach. Its Islamic provisions were
elaborate: a chapter on ‘Directive Principles of State Policy’ enjoined the
state to eliminate riba,17 to prohibit ‘drinking, gambling and prostitution
in all their various forms’, to promote and maintain Islamic moral stan-
dards, to promote the understanding of Islam, and to bring ‘the existing
laws into conformity with the Islamic principles’ (Choudhry 1967: 27).
None of these directives could be enforced in a court of law, but the
draft constitution provided in a separate chapter, headed ‘Procedure for
Preventing Legislation Repugnant to the Quran and the Sunnah’, a me-
chanism to ensure that all legislation was in accordance with Islam.
This mechanism envisaged the setting up of a ‘Board consisting of not
more than five persons well versed in Islamic Laws’ (Choudhry 1967:
27), which would examine a law on the basis of Islam. Its recommenda-
tions could be overturned by a simple majority of a joint sitting of the
two houses of parliament. Thus, the Islamic repugnancy clause only ap-
plied to prospective laws but left the legacy of colonial laws
undisturbed.
While these provisions satisfied the Islamists, the second draft consti-
tution sparked protests from West Pakistan, which took objection to the
parity envisaged by the draft. The controversies and disputes surround-
ing the delicate matter of the Islamic character of the newly founded
state were matched by an equally serious disagreement about the rela-
tions between East and West Pakistan. The former was the more popu-
lous of the two units, and if ever there were national elections based on
an adult franchise, East Pakistan’s politicians would in all likelihood be
in control of the government of Pakistan.18 The attempts to reconcile
the conflicting interests and jealousies between East and West Pakistan
in a constitutional document proved to be a major stumbling block on
the road towards a constitution. A third draft constitution was framed
by the Constituent Assembly in the course of 1953 and 1954. Intensely
watched by the world press, the Constituent Assembly reconvened on 7
October 1953, and a month later, on 7 November 1953, the first legally
binding decision was taken, though in the absence of the Hindu mem-
bers, who had walked out in protest: Pakistan became an ‘Islamic
Republic’. A year later, on 6 October 1954, the Constituent Assembly
adopted the third draft constitution. It retained the requirement that the
legislature should not ‘enact any law which is repugnant to the Holy
Quran and the Sunnah’ (Choudhury 1967: 199) but provided that ‘the
Supreme Court alone should have jurisdiction for determining whether
or not a particular law is repugnant to the Holy Quran and the
Sunnah’. The third draft constitution was favourably received by the
392 MARTIN LAU

Pakistani press, and even the Jamaat-i Islami, the main Islamic party,
approved of it as being in accordance with Islam. On 24 October 1954,
just days before the Constituent Assembly was to reconvene, Governor
General Ghulam Muhammad announced its dissolution, stating that
‘the Constituent Assembly as at present constituted had lost the confi-
dence of the people and could no longer function’ (Binder 1961: 361).
A second Constituent Assembly, whose members were elected from
the existing provincial legislative assemblies, approved a fourth draft
constitution on 8 January 1956. This constitution was promulgated on
23 March 1956. The 1956 Constitution adopted some of the Islamic fea-
tures of the first draft constitution. The Objectives Resolution became
the preamble, and the Islamic provisions contained in the Directive
Principles of State Policy remained largely unchanged. The same ap-
plied to the qualifications of the head of state, who had to be a Muslim,
and to the repugnancy clause. The latter, however, had become wider,
providing that no law should be enacted that was contrary to Islam, but
also that existing legislation should be brought into conformity with the
injunctions of Islam. This seemingly stringent provision was, however,
rendered legally ineffective because it could not be enforced by a court.
Instead, it was to be implemented by a board of experts who would re-
port their recommendations to the National Assembly within five years.
There was no obligation on the National Assembly to adopt these re-
commendations. This rather tame Islamisation measure, rather oddly,
was approved by the religious parties, including the Jamaat-i Islami,
which had by then become wary of the Supreme Court being given jur-
isdiction to carry out this exercise (Binder 1961: 372). Chief Justice
Muhammad Munir had shown his secular credentials in his Report on
the Punjab Disturbances, issued in 1954, which had roundly con-
demned Islamic extremism.19

The Constitution of 1962

The life of the 1956 Constitution ended abruptly on 7 October 1958, fol-
lowing a coup d’état instigated by General Ayub Khan, who was declared
chief martial law administrator by President Iskander Mirza. None of
its Islamic provisions had been implemented. The 1956 Constitution
was replaced by a Laws (Continuance in Force) Order, 1958, which in
turn was replaced by the Basic Democracies Order, promulgated on 27
October 1959. After four years of martial law a new constitution came
into force on 1 March 1962.
The Islamic provisions of the 1962 Constitution were largely mod-
eled on the pattern of its 1956 predecessor, but there were important
differences in that many references to Islam had been omitted. Most
glaring was the change in the official name of the country: Pakistan had
SHARIA AND NATIONAL LAW IN PAKISTAN 393

become simply the Republic of Pakistan.20 In the text of the Objectives

Resolution as incorporated in the 1962 Constitution, the original provi-
sion that ‘the authority exercisable by the people within the limits pre-
scribed by Him is a sacred trust’, was shortened to ‘the authority exerci-
sable by the people is a sacred trust’, thereby removing any limitation
on the legislative powers of the people. Pressure from Islamists, repre-
sented by the Jaamat-i-Islami and the Jamiat Ulema-i-Islam, forced
Ayub Khan’s government to pass the Constitution (First Amendment)
Act 1963 which restored the original wording of the Objectives
Resolution and renamed the country as ‘Islamic Republic of Pakistan’.21
Like its 1956 predecessor the 1962 Constitution made the constitutional
provision that all laws should be in accordance with Islam unenforce-
able. Along with other Islamic provisions, it was contained in a chapter
on ‘Principles of Policy’ and thus unenforceable. An Advisory Council
of Islamic Ideology was to prepare annual reports on the Islamic legiti-
macy of new and existing laws, but such advice was not binding on par-
liament.22 In addition, the 1962 Constitution provided for the setting
up of an Islamic Research Institute,23 which was to ‘undertake Islamic
research and instruction in Islam for the purpose of assisting in the re-
construction of Muslim society on a truly Islamic basis’.24 The estab-
lishment of the Islamic Research Institute was part of a deliberate at-
tempt to wrestle from the Islamists, chiefly Mawlana Mawdudi’s
Jamaat-i-Islami, the monopoly over the interpretation of Islam. Headed
by Fazlur Rahman, an internationally known and respected scholar of
Islam, the Islamic Research Institute propagated a modernist, rational
interpretation of Islam (Rahman 1970). Ayub Khan’s attempt to incul-
cate a modern vision of Islam was accompanied by reforms of Muslim
personal law25 and the imposition of government control over Islamic
charitable trusts (Malik 1990). Throughout his tenure, Ayub Khan was
locked in battle with the Jamaat-i-Islami, imprisoning its leader
Mawdudi several times and attempting to dissolve the party altogether.
The period of 1962 until 1971 was marked by the war with India in
1965 over the disputed territory of Kashmir and the secession of East
Pakistan. As anticipated in the purely advisory provisions of the 1962
Constitution, there was no serious attempt to implement the constitu-
tional requirement to make all laws conform with Islam. In contrast ,
the 1962 Constitution protected against judicial review the most signifi-
cant reform of Islamic family law ever witnessed in the Indian sub-con-
tinent, namely the Muslim Family Laws Ordinance 1961 (MFLO) (see
9.6).
The MFLO has its origins in the recommendations of the
Commission on Marriage and Reform, established in 1955, which con-
tained wide-ranging proposals to reform Muslim personal law. The
MFLO reformed the law governing divorce, marriage and inheritance.
394 MARTIN LAU

Under section 7 of the MFLO a divorce is only valid if the husband noti-
fies both his wife and the Union Council, a local government body, of
the divorce and if at the expiration of 90 days after receipt of the di-
vorce the couple has not been reconciled. The Union Council is asked
to constitute an arbitration council to assist with the efforts to prevent
the dissolution of the marriage. Non-compliance with these require-
ments renders a divorce invalid. In respect of polygamous marriages,
the MFLO requires a husband who wants to marry a second wife to ob-
tain the permission of his first wife as well as that of the Union
Council. Failure to do so does not render the polygamous marriage in-
valid but exposes the offender to penal sanctions and allows his first
wife to obtain a divorce. In respect of inheritance law, section 4 of the
MFLO allows an orphaned grandchild to inherit from his or her grand-
father. All three reform measures were opposed by Islamists but given
that the MFLO was promulgated in the form of an ordinance during
the period of martial law, their protests were futile.
The Muslim Personal Law (Shariat) Act 1962 was the only other law
passed during the Ayub Khan era which concerned Islamic law. As dis-
cussed above, this Act extended the application of the 1937 Act to agri-
cultural land. Legislation reforming the management of Islamic trust
properties in the form of the West Pakistan Auqaf Properties Ordinance
1959 was meant to weaken the influence of traditional elites and the
ulama (Braibanti 1965: 87).
The period occupied by the 1962 Constitution also witnessed the
emergence of an increasingly assertive judiciary, which insisted on its
right to review the constitutional validity of all laws. However, this em-
phasis on the power of judicial review was not as yet linked with any
programme of Islamisation but concerned the rights of the judiciary to
enforce fundamental rights.26

9.3 The period from 1965 until 1985

The birth of Bangladesh and the Islamisation of Pakistan

The partition of Pakistan

While managing to keep the upper hand against the Islamists, Ayub
Khan was not so successful in the conflict with India over the disputed
territory of Kashmir. Pakistan’s attempt to gain control over the Indian
state of Jammu and Kashmir in the summer of 1965 quickly escalated
into a full-blown war with India, which saw both countries’ forces enter-
ing each other’s territory. The short war, which started on 6 September
1965, and ended about two weeks later with a ceasefire, marked the be-
ginning of the end of Ayub Khan’s regime. His opponents saw in the
SHARIA AND NATIONAL LAW IN PAKISTAN 395

ceasefire a humiliating defeat for Pakistan, and long-held grievances

erupted in civil unrest, especially in East Pakistan. The founding of the
Pakistan People’s Party in 1967 served to unite popular opposition to
the regime in West Pakistan, but failed to unite the country. In East
Pakistan, Mujibur Rahman’s Awami League dominated the political
landscape with an increasingly insistent demand for provincial autono-
my. On 25 March 1969, Ayub Khan resigned from office and handed
over power to the army chief of staff, General Yahya Khan. The hand-
over was in direct violation of Ayub Khan’s 1962 Constitution. Yahya
Khan was to rule Pakistan until December 1971. By then, East Pakistan
had seceded from Pakistan in a bloody civil war to become the indepen-
dent nation of Bangladesh, and Zulfikar Ali Bhutto and his Pakistan
People’s Party had emerged as the main political force in West
Pakistan.

The Constitution 1973

Because of his party’s success in West Pakistan in the 1970 elections,
Zulfikar Ali was able to build political consensus for the drafting of a
new constitution. In April 1972 an interim constitution was introduced,
and on 14 August 1973, following an occasionally acrimonious debate,
the National Assembly in its capacity as Constituent Assembly adopted
a new constitution - hence referred to as ‘Constitution 1973’ - for what
remained of Pakistan. The Jaamat-i-Islami reluctantly approved the new
constitution, conceding that they did not have the means to stop its pas-
sage (Pirzada 2000: 79). At first glance the Constitution 1973 replicated
the approach taken by its predecessors. The basic structure of non-justi-
ciable constitutional provisions urging the state to bring all laws into
conformity with Islam and a provision for the setting up of an advisory
body on Islamic law was retained and like its predecessors the new con-
stitution contained a separate chapter headed ‘Islamic Provisions’ that
provided for the setting up of a Council of Islamic Ideology.27 In line
with constitutional precedent, the council had an advisory role and en-
joyed no inherent jurisdiction to ensure that its recommendations were
acted upon by parliament. Similarly, no law could be challenged by way
of judicial review on the ground that it had been found to be repugnant
to Islam by the Council of Islamic Ideology. However, the increasing in-
fluence of Islamic parties is visible in the constitution’s additional refer-
ences to Islam, which had been missing from the previous constitu-
tions. Both the Prime Minister and the President had to be Muslims
but the oath to be taken by them included a statement to the effect that
they believed in ‘the Prophethood of Muhammad (peace be upon him)
as the last of the Prophets and that there can be no Prophet after him,
…’.28 This provision was intended to prevent Ahmadis from assuming
396 MARTIN LAU

these offices. In a further affirmation of the religious foundation of the

constitutional order Islam was declared the state religion.29

Using Islam: The Ahmadis

The Constitution 1973 shared the fate of the Constitution of 1962 in
that shortly after coming into force it was amended as a result of pres-
sure from Islamic parties. This time, however, the amendments were
more than just symbolic measures of appeasement but involved the de-
claration of the members of the Ahmadiyya community as non-
Muslims. Under the Constitution (Second Amendment) Act 1974
Ahmadis were included in the list of non-minorities for the purposes of
representation in the provincial assemblies30 and an amendment to
Article 260 of the Constitution 1973 defined a Muslim as:

A person who does not believe in the absolute and unqualified

finality of the Prophethood of Muhammad (peace be upon
Him), the last of the Prophets or claims to be a prophet, in any
sense of the word or of any description whatsoever, after
Muhammad (peace be upon Him), or recognises such a clai-
mant as a prophet or a religious reformer, is not a Muslim for
the purposes of the Constitution or Law.31

This constitutional amendment relegating the members of the Ahmadi

community to the status of non-Muslims is evidence of two connected
developments: firstly, the increasing strength of conservative Islamic
parties which enabled them to control the streets under the banner of
Islam and instigate large scale disturbances whenever they declared
Islam to be under threat. Secondly, they reveal the growing influence of
international Islamic movements in Pakistan. Additionally, the amend-
ment also gives credence to the claim that Bhutto and his PPP exploited
appeals to Islam to bolster flagging support whenever it was expedient
to do so (Nasr 1994: 181-182). At first glance, the re-definition of
Ahmadis as non-Muslims brought to a conclusion a demand made by
Islamic parties since before independence. The use of the phrase ‘final-
ity of the Prophethood’ in the new article 260 (3) was of significance,
since it mirrored the name of the Council for Protecting the Finality of
Prophethood (Tahaffuz-i-Khtam-i-Nabuwawat Tehrik), formed as early as
1952 to demand the removal of Ahmadis from the fold of Islam
(Pirzada 2000: 21). Viewed from this perspective the amendment in
1974 marked the destination of a development which had been pushed
by Islamic parties for two decades.
However, a closer look reveals that the country-wide agitation and dis-
turbances of early 1974 had a new quality. The Ahmadi issue had been
SHARIA AND NATIONAL LAW IN PAKISTAN 397

dormant and sitting in ‘cold storage’ ever since 1954 and for the preced-
ing twenty years there had been no agitation for the exclusion of
Ahmadis from the pale of Islam (Kaushik 1996: 37). However, the re-
turn of democracy in the early 1970s gave fresh impetus to Islamic par-
ties, who were by now receiving buoyancy from the emergence of the
international Islamic ‘awakening’. The agitation to declare Ahmadis
non-Muslims which gripped Pakistan in the first half of 1974 had been
preceded by the Islamic Summit, held in Lahore in February 1974, in
the course of which King Faisal promised Bhutto economic aid in re-
turn for resolving the Ahmadiyya issue. Leaders of the Jaamat-i-Islami
and the Majlis-i-Ahrar had called on Saudi Arabia to put pressure on
the Bhutto government to address the Ahmadi issue (Kaushik 1996:
43). A new round of disturbances erupted in 1974, leading to the forma-
tion of the ‘All Parties Khatm-i-Nubuwwat Action Committee’, which re-
presented not only Islamic parties but also other opposition parties, and
a country-wide strike on 14 June 1974. Bhutto initially rejected the de-
mands of the Action Committee but on 30 June 1974 agreed to form a
Special Committee of parliament to discuss the issue and allowed PPP
members a free vote on the issue. On 7 September 1974 the bill to
amend the Constitution 1973 was unanimously passed by the National
Assembly, with Bhutto declaring that ‘the first principle of the PPP was
“Islam is our Faith”’ (Pirzada 2000: 124). The internationalisation of
the Islamic movement during the Bhutto era continued with the hold-
ing of the International Seerat Conference in March 1976, sponsored
by the Pakistani government. In his opening address, Bhutto stressed
the importance of the concept of the finality of Prophethood (Kaushik
1996: 53). The banning of the drinking of alcohol and the declaration of
Friday as a holiday instead of Sunday followed in 1977.
Despite his promises to improve the conditions of Pakistan’s poor,
Bhutto had disappointed them. There were no meaningful land reforms
and Bhutto was unable to reduce the power of the military, the bureau-
cracy and the landed oligarchy, which had dominated Pakistani politics
ever since independence. His appeals to religion were therefore part of
a ‘balancing act between various interest groups’ which left the state pa-
ralysed and enabled religious parties, which had done badly in the 1970
elections, to gain greater visibility and importance (Nasr 1994: 76). In
preparation for the 1977 elections opposition parties formed the
Pakistan National Alliance, which included also Islamic parties such as
the Jamaat-i-Islami, and which campaigned against Bhutto using ap-
peals to Islam and blaming the loss of East Pakistan on Bhutto’s secu-
larism and his personal moral turpitude.
Bhutto’s PPP won the elections but the victory was short-lived.
Allegations of vote-rigging ended in popular unrest and riots.
Negotiations between Bhutto and the Pakistan National Alliance,
398 MARTIN LAU

mediated by Saudi Arabia, were however cut short. On 5 July 1977,

Bhutto was removed from power by a coup d’état led by General Zia ul-
Haq.

Islam and martial law: the Zia era

Zia’s declaration of martial law and the subsequent introduction of a
wide range of legal measures marked the beginning of the first serious
attempt by a government to Islamise the legal system of Pakistan. The
motivation behind Zia’s relentless drive to make Pakistan an Islamic
state, were two-fold. Firstly, it provided a justification for his coup and
his failure to hold elections: according to Zia, successive governments
had failed to make Pakistan an Islamic state. Assuming the role as the
saviour of Pakistan’s destiny, Zia resolved to return the country to de-
mocracy only as and when it had been turned into a truly Islamic state.
Secondly, by taking command of the Islamisation project, Zia was able
to sideline Islamic parties and take control of the Islamic discourse. By
adopting the agenda of the Islamists, Zia effectively silenced them.
Islamisation became the primary instrument of state formation and a
means to destroy the popular appeal of the PPP, whose leader Zulfikar
Ali Bhutto was executed in 1979, following a murder conviction.
International isolation turned into support for Zia’s regime when the
Soviet Union invaded neighbouring Afghanistan in 1979, turning Zia’s
regime into an important ally of the United States. Zia’s Islamisation
project, in the first two years used for purely domestic purposes, now
became a potent weapon in the fight against communism in neighbour-
ing Afghanistan. Pakistan not only provided shelter to millions of
Afghan refugees, but also a staging ground for the Mujahedin, who, se-
cretly financed and armed by the United States, fought the communist
enemy in the name of Islam.
Initially, Islamisation proceeded tentatively. The first concrete mea-
sure was the creation of separate electorates for non-Muslims in
September 1978. This was followed by the promulgation of the Hudood
Ordinances in 1979 and the Zakat and Ushr Ordinance in 1980. The
promulgation of the Hudood Ordinances introduced Islamic criminal
law for the first time since it had been gradually displaced during
British colonial rule in favour of English criminal law. The Islamisation
of the legal system was accompanied by a concerted effort to Islamise
Pakistani society, culture and economy. Islamic symbolism, public flog-
gings, the enforcement of fasting and prayer, the building of mosques
and financial support for private, religious schools, known as madrasas,
were some of the many measures taken by Zia’s regime to control the
minds and hearts of the people.
SHARIA AND NATIONAL LAW IN PAKISTAN 399

Challenges to Zia’s regime emerged in the early 1980s when the

theme of Islamic solidarity showed the first strains. With its founda-
tions firmly in Sunni Islam, the Islamisation measures strained the re-
lationship between Sunni and Shias, contributing to sectarian strive be-
tween the two communities which continues to the present. Ethnic divi-
sions, especially those between Punjab and Sindh, fuelled the
Movement for the Restoration of Democracy, founded in 1983 by
Benazir Bhutto, who while in exile had succeeded her father Zulfikar
Ali Bhutto as the leader of the PPP. In 1984 Zia held a referendum to
show public support for his Islamisation measures and to confirm him
as President. Elections on a non-party basis followed in 1985, with the
new parliament protecting his position by passing the Constitution
(Eighth) Amendment Act 1985. The constitutional amendment pro-
tected all Islamisation measures introduced by Zia against judicial re-
view and secured his position as President by introducing a constitu-
tional provision which allowed the President to dismiss a government.32
The elections were won by the Pakistan Muslim League (PML), a party
with a strong basis amongst the landholding classes of Punjab. In 1988,
Zia dismissed the PML government, following disagreement over the
introduction of further Islamisation measures. Shortly after the promul-
gation of the Shariat Ordinance 1988, Zia died in an aircrash in August
1988. The Zia era had ended, but the effects of his Islamisation mea-
sures continue to be felt today.
The period of 1977 to 1988 is most visibly associated with the sup-
pression of the rights of women, in particular in the form of the Zina
(Enforcement of Hudood) Ordinance 1979, and of religious minorities.
Ahmadis, who had already been declared non-Muslims in 1974, were
now made subject to an Ahmadi specific criminal law, which made it a
criminal offence for Ahmadis to ‘pose’ as Muslims.33 Less visible, but
equally important, was the Islamisation of the judiciary and the legal
discourse.

Islam and Pakistan’s judiciary

Until Zia’s coup in 1977 a self-contained, professional and socially con-
servative judiciary with deep educational roots in the English common
law had administered a legal system that despite frequent constitutional
breakdowns and political upheavals had retained its colonial shape. At
the time of independence the entire colonial legal system had been
adopted by Pakistan and its main elements, the Anglo-Indian codes,
had continued in force with hardly any changes. Constitutional provi-
sions asking the state to bring all laws into conformity with Islam had
been unenforceable and the judiciary itself only rarely left the safety of
the colonial legacy to explore the landscape of Islamic law. On the few
400 MARTIN LAU

occasions when they did, judges engaged in the reform of family law,
for instance by extending the right of Muslim women to seek a judicial
divorce of their marriage,34 or referred to Islam in order to assert de-
mocracy and constitutionalism35 or applied Islamic law to areas of law
not covered by statutory laws.36 Neither the use of Islam in support of
state building in the 1950s nor Bhutto’s Islamic populism in the 1970s
had affected the basic structure of the legal system or the composition
of its higher judiciary.
The year 1977, however, also constitutes a watershed for Pakistan’s
judiciary. Implementing his totalitarian enterprise of Islamisation Zia
endeavoured to bring the judiciary in line with his policies. Judges re-
luctant to endorse his rule were removed from the benches of the four
high courts and the Supreme Court in 1977 and in 1981 and their
power of judicial review curtailed. The weakening of the power of the
higher judiciary was compounded by the creation of the Federal Shariat
Court in 1980.37 The new court was given the jurisdiction to review the
validity of laws, either on its own motion or by being petitioned to do
so by a member of the general public, on the basis of Islam. Excluded
from its jurisdiction were the constitution, Muslim personal law and
any law relating to the procedure of any court or tribunal.38

9.4 The period from 1985 until the present

The rise and fall of democracy

New orientations of judicial Islamisation

The Federal Shariat Court proceeded to review the Islamic vires of the
entire body of Pakistan’s codified law. Whilst the vast majority of laws
survived the examination intact, there were nevertheless important ex-
ceptions. The most important relate to criminal law and banking law. In
respect of the former, the Federal Shariat Court held that provisions
covering the offences of murder and assault were contrary to Islam, for-
cing the government to base this area of law on Islamic principles.39
The charging of interest was declared repugnant to Islam in 1992.40 In
addition, the FSC formulated several Islamic fundamental rights,
amongst them ‘the right to justice’ and ‘the right to be heard’, which
were used as a basis for the judicial review of laws.
In a parallel development, some judges in the ‘secular’ high courts
also began to engage in an Islamisation drive of their own and began to
review laws on the basis of Islam. Chief among them was Justice
Tanzil-ur-Rahman, a justice of the Karachi High Court and former
chairman of the Council of Islamic Ideology, who in a series of deci-
sions invalidated parts of the MFLO41 and declared the charging of
SHARIA AND NATIONAL LAW IN PAKISTAN 401

interest un-Islamic.42 The basis for these decisions was article 2A of the
Constitution 1973. Introduced as part of the Eighth Amendment in
1985, article 2A incorporated the provisions of the Objectives
Resolution into the main body of the constitution. According to Justice
Tanzil-ur-Rahman:

[….] the Courts in Pakistan are bound by the Constitution, and

any law repugnant to the Constitution is void. The principles
and provisions of the Objectives Resolution, by virtue of Article
2-A, are now part of the Constitution and justiciable. Any provi-
sion of the Constitution or law, found repugnant to them, may
be declared by a superior Court as void […].43

If allowed to continue, the newly found jurisdiction could have funda-

mentally changed the legal system of Pakistan because unlike the FSC
there were no limitations imposed on the self-arrogated powers of judi-
cial review. By the early 1990s there were serious concerns that the le-
gal system might unravel if judges like Justice Tanzil-ur-Rahman were
allowed to continue to invalidate laws on the basis of Islam. The
Supreme Court decided to intervene, observing that the unrestrained ju-
dicial review in the name of Islam could lead to a situation where ‘the
very basis on which the Constitution is founded […] could be chal-
lenged’.44 In 1992, the Supreme Court ruled that apart from the FSC
no other court had the power to invalidate laws, or indeed the
Constitution 1973 on the basis of Islam.45
References to Islam nevertheless began to permeate the judgements
of Pakistan’s higher courts in relation to the emergence of public inter-
est litigation. The term ‘public interest litigation’ denotes human rights
cases which are brought in the public interest and not by a petitioner
asking for the adjudication of a personal claim. Public interest litigation
first started in India in the mid-1980s, but by the early 1990s it was
being adopted by Pakistan’s higher judiciary. What makes Pakistani
public interest litigation cases unique is their frequent reliance on
Islamic law, principally to widen the scope of constitutionally guaran-
teed fundamental rights. There is hardly any case concerned with the
enforcement of fundamental rights in the 1990s which does not refer
to Islam in some way. Justice Afazal Zullah can be singled out as one of
the most outspoken and active proponents of this ‘indigenisation’ of
Pakistan’s constitutional law. In 1990 he introduced the higher judi-
ciary’s ‘Scheme for the Protection of Human Rights of All Classes of
Society in the Country’, declaring that

[the] Superior Judiciary has clearly emphasised the need for a

genuine effort for the reconstruction of the Islamic concepts in
402 MARTIN LAU

this field [ie protection of human rights] and for evolving steps
in an indigenous manner for guiding and motivating the citi-
zens and the State for asserting, promoting and enforcing the le-
gal rights of citizens guaranteed by Islam, the Constitution and
the Law.46

On the whole the infusion of Islam into the human rights’ jurispru-
dence was beneficial, but there was one important exception. In a case
concerning the constitutional validity of the criminal law which made it
an offence for members of Ahmadi to ‘pose’ as Muslims, the Supreme
Court declared that the constitutionally guaranteed right to freedom of
religion could be restricted in order to protect Islam.47

Islam and democracy

The death of Zia in 1988 ushered in a period of democracy which was
to last until 1999, when General Pervaiz Musharraf staged a coup d’état.
The decade of democracy was marked by the inability of the two main
political parties, Benazir Bhutto’s PPP and Nawaz Sharif’s PML, to cre-
ate stable and lasting governments. The PPP won the elections in 1988
but a dismissal of Benazir Bhutto’s government by the President in
1990 enabled the PML to return to power. In 1993, it was the Nawaz
Sharif’s government’s turn to be dismissed. In subsequent elections the
PPP emerged with a slim majority. Benazir Bhutto’s government lasted
until 1996, when following another dismissal, Nawaz Sharif formed a
government, albeit it for the last time. Perhaps unsurprisingly,
Musharraf’s coup in 1999 was largely unopposed by a population which
had become disillusioned with the realties of a fragile democracy.
Of the two parties, it was only Nawaz Sharif’s PML which sought to
continue Zia’s Islamisation policies. However, in practical terms the
only legal change his regime brought about was in the form of section
4 of the Enforcement of Shari’ah Act 1991, which mandated judges to
apply Islamic law to those areas not covered by statute (see 9.5). The
other Islamisation measure, namely the introduction of Islamic crim-
inal law relating to murder, in the form of the Criminal Law
(Amendment) Act, 1997, constituted a significant change in the crim-
inal law, but was not a result of any policy of Nawaz Sharif’s govern-
ment (see 9.7). The amendment had been required as a result of a deci-
sion of the Federal Shariat Court.
Whilst Nawaz Sharif was not able to follow with actions his repeated
promises to make further progress with Islamisation, Benazir Bhutto
was unable to fulfil her promise to remove some of these measures.
Neither the laws discriminating against religious minorities nor the
SHARIA AND NATIONAL LAW IN PAKISTAN 403

controversial Hudood Ordinances were in any way amended, leave

alone repealed, under her two governments.

The end of democracy: Musharraf’s rule

In October 1999, the army deposed Nawaz Sharif through a coup d’état
and General Pervez Musharraf, the then Chief of Army Staff, took over
power. He immediately suspended the Constitution 1973 and through a
decree made all existing legislation ‘subject to the Orders of the Chief
Executive’. As was the case with previous coups, the constitutional valid-
ity of Musharraf’s actions was immediately challenged before the
Supreme Court. Anticipating defeat, Musharraf promulgated the Oath
of Judges Order 2000, requiring all judges of superior courts to take a
fresh oath of office thereby swearing allegiance to the military and vow-
ing not to challenge decisions taken under the military rule.48 Those
who refused to take the new oath were dismissed, leaving behind a ju-
diciary that was purged of any dissent. The newly constituted Supreme
Court duly endorsed the constitutional validity of Musharraf’s coup,
granting him three years before holding fresh national elections and al-
lowing him to amend the constitution.49 Until 2002, the provincial as-
semblies and the National Assembly were dissolved and Musharraf ru-
led through executive order. On 20 June 2001, Musharraf assumed the
position of President of Pakistan. A year later, on 30 April 2002, he
held and won a referendum, thus legitimising and extending his presi-
dency for five years.
Suspended from the Commonwealth and internationally isolated,
Musharraf’s fortunes improved with the terrorist attacks in the United
States on 11 September 2001: he immediately declared his support for
the U.S. in its fight against global terrorism, pledging Pakistani support
for the fight against the Taliban and Al Qaeda.
Musharraf’s next hurdle appeared when in 2002 the three year peri-
od granted to him by the Supreme Court came to an end and he faced
the prospect of having to hold elections. In order to remain in office,
wide-ranging amendments to the Constitution 1973 were required,
especially in respect of the powers of the President to dismiss an unruly
parliament. On 21 August 2002, Musharraf promulgated the Legal
Framework Order 2002 (LFO). The LFO contained numerous amend-
ments to the Constitution 1973, widely regarded as ‘undermining the
parliamentary system of government and provincial autonomy’ (Khan
2009: 660). The LFO revived the controversial Article 58(2)(b) of the
Constitution 1973, allowing the President to dissolve the National
Assembly at his discretion, introduced a National Security Council con-
sisting of members of the armed forces,50 and validated all laws made
by the Musharraf regime.51
404 MARTIN LAU

National Assembly elections followed in October 2002, resulting in a

thin victory of a splinter party of the Muslim League, the PML-Quaid-e-
Azam (PML-Q), which was supporting Musharraf. Pakistan’s two lead-
ing politicians, Nawaz Sharif of the PML, now called the PML-Nawaz,
and Benazir Bhutto of the PPP, were prevented from contesting the
elections. Following a criminal conviction for the attempted hijacking of
Musharraf’s plane, Sharif was allowed to escape imprisonment and to
settle in Saudi Arabia, on the condition that he would not return to the
country for a period of ten years and would not participate in Pakistani
politics. By this time, Benazir Bhutto had left Pakistan in order to avoid
having to answer charges of corruption. Despite Bhutto’s absence, the
PPP came second. A new alliance of religious parties, which had united
under the name of Muttahidda Majlis-e-Amal (MMA), came in third.
Whilst trailing in the national elections, the MMA scored resounding
victories in the relatively sparsely populated province of Baluchistan and
in the North-West Frontier Province (NWFP). This victory was attribu-
ted to the anger in the tribal areas over Pakistani aid to the American-
led operation against the Taliban in Afghanistan, as well as to resistance
against the autocratic rule of Musharraf and the often harsh methods
employed by the Pakistani army in fighting Islamist insurgents (Hilton
2002). The MMA won an absolute majority in the NWFP and immedi-
ately attempted to introduce provincial legislation to locally implement
the sharia.
The unexpectedly strong showing of the parties opposed to
Musharraf led to an impasse in the National Assembly, because they re-
fused to take an oath under the provisions of the LFO. For over a year
no business could be conducted, until December 2003 when an alliance
of the MMA and the PML-Q passed the Constitution (Seventeenth)
Amendment Act 2003. This amendment incorporated the provisions of
the LFO into the Constitution 1973.
However, the support of the MMA in getting the Seventeenth
Amendment passed had been made conditional on General Musharraf
resigning as Chief of Army Staff at the end of 2004, thereby honouring
the constitutional prohibition on the President holding any other office
of profit.52 Musharraf reneged on his promise, with political parties
close to him passing the President to Hold Another Office Act 2004 on
14 October 2004.
The decline of President Musharraf’s fortunes began in 2005 when
the government’s attempt to privatise one of the largest nationalised in-
dustrial enterprises, the Pakistan Steel Mills Corporation, was declared
unconstitutional by the Supreme Court.53 This was the first time in se-
ven years that the Supreme Court had taken a stance against an action
of the government. The case was heard by a nine-member bench of the
Supreme Court, which included the Chief Justice Ifthikar Chaudhry,
SHARIA AND NATIONAL LAW IN PAKISTAN 405

who had assumed this position on 30 June 2005. Other cases followed,
with the Supreme Court and some of the high courts taking up cases of
alleged human rights violation suo moto, i.e. on their own motion.
The ebbing away of judicial support for his regime posed a problem
for Musharraf whose tenure as President was coming to an end in
2007. He needed the Supreme Court’s support if he was to be allowed
to seek re-election whilst retaining the position of Chief of Army Staff.
Musharraf decided to act against the Chief Justice on 9 March 2007,
when he ordered him to resign or face proceedings for misconduct.
When the Chief Justice refused to resign, the government commenced
proceedings against Chaudhry before the Supreme Judicial Council.
Musharraf had, however, underestimated the public reaction against the
suspension of the Chief Justice. Nationwide protests and a sustained
media campaign for his reinstatement commenced. Meanwhile, the
Supreme Court stayed the proceedings of the Supreme Judicial Council
on 7 May 2007. Two months later, on 20 July 2007, the Supreme Court
issued an order setting aside the reference against Chaudhry and restor-
ing him to the position of Chief Justice.54
Musharraf’s position had been weakened by the reinstatement of the
Chief Justice and during the summer of 2007 Pakistan saw the first
stirrings of political change. By the end of 2007 both Musharraf’s term
as President would come to an end, and national and provincial assem-
bly elections were due to be held. There were indications that the two
politicians who had dominated Pakistani politics in the 1990s, former
Prime Ministers Benazir Bhutto and Nawaz Sharif, were preparing
themselves to return to Pakistan in order to participate in the parlia-
mentary elections scheduled for January 2008. In August 2007,
Musharraf began secret consultations with Benazir Bhutto on a possible
power-sharing deal. In the meantime, Nawaz Sharif began to prepare
the ground for his return to Pakistan by challenging the legality of his
exile.55 The Supreme Court allowed his petition, holding that ‘no con-
straint can be placed on a Pakistani citizen to return to his country un-
der Article 15 of the Constitution’.56
Towards the end of 2007, Musharraf’s position seemed to improve.
On 28 September 2007, the Supreme Court dismissed a petition that
had challenged the legality of Musharraf running for re-election as
President whilst retaining his post as head of the armed forces. The
path was now clear for him to seek re-election. On 6 October 2007, he
won the vote of the country’s legislators with an overwhelming majority
and commenced his second term as President.
However, the victory was flawed by the fact that the two main opposi-
tion parties had boycotted his re-election. Furthermore, on 17 October
2007 the Supreme Court began hearings on the constitutionality of
Musharraf’s re-election. The political uncertainty was compounded by
406 MARTIN LAU

the return of Benazir Bhutto from exile on 19 October 2007. Her return
had been made possible by the promulgation of the National
Reconciliation Ordinance 2007 on 5 October 2007, which provided her,
and other politicians, with immunity from prosecution for corruption-
related offences between 1986 and 1999 (Lau 2009).
On 3 November 2007 President Musharraf, faced with the real possi-
bility that the Supreme Court might block his attempt to assume office
as re-elected President, staged a second coup d’état, this time directed
not against a democratically-elected government but against the coun-
try’s higher judiciary.57 With three short orders he imposed a state of
emergency, suspended the constitution, and removed a large number of
judges from the benches of the four high courts and the Supreme
Court. On the same day, Musharraf issued the Provisional Constitution
Order No. 1/ 2007, which resurrected the Constitution 1973 in a modi-
fied form. The Oath of Office (Judges) Order 2007 dismissed the entire
higher judiciary but allowed those judges who, after having been invited
to do so, agreed to take the new oath contained in a schedule of the
Order to resume their functions. The new oath enjoined a judge to per-
form his or her functions in accordance with the Proclamation of
Emergency and the Provisional Constitutional Order 2007. Of the
judges of the Supreme Court, only five took the new oath. Chief Justice
Chaudhry was not among them. An attempt to declare the
Proclamation of Emergency unconstitutional in the form of a short or-
der passed towards the end of the day on 3 November by a seven-mem-
ber bench of the Supreme Court ended with the storming of the
Supreme Court by armed forces and Chaudhry being placed under
house arrest. Out of 95 judges of superior courts, only 32 took the new
oath.58 Musharraf’s actions were challenged before the Supreme Court,
but predictably, given that its members had taken the new oath, none of
the claims was successful.
On 18 November 2007, President Musharraf resigned as Chief of
Army Staff. The emergency was lifted on 15 December 200759 and with
both Benazir Bhutto and Nawaz Sharif having returned to the country
the election campaign for the parliamentary elections, scheduled for 8
January 2008, began. The impression of a return to normality was bru-
tally shattered on 27 December 2007, when Benazir Bhutto was killed
in a suicide bomb attack.
Postponed to 18 February 2008, the elections resulted in a clear vic-
tory of the two opposition parties, the PPP and the PML(N), with the
PPP now being headed by Asif Zardari, the widower of Benazir Bhutto.
The two parties entered into a power-sharing agreement and formed a
coalition government. An agreed goal of the coalition was the restora-
tion of the judiciary to its state before the proclamation of the
November 2007 emergency. This agreement was, however, not adhered
SHARIA AND NATIONAL LAW IN PAKISTAN 407

to, and on 12 May 2008, the PML(N) left the coalition government.
Three months later, on 18 August 2008, Musharraf, faced with im-
peachment proceedings, resigned as President. Presidential elections,
held on 6 September 2008, resulted in a comfortable victory of Asif
Zardari of the PPP.
The beginning of 2009 saw more political drama. Pakistan’s legal
profession had launched a national Lawyer’s Movement, demanding the
reinstatement of Chief Justice Chaudhry. Demonstrations at the end of
February 2009 forced the PPP government to issue an executive order
allowing Chief Justice Chaudhry to resume his office on 23 March
2009.
The gradual normalisation of public life is, however, far from com-
plete. Attempts to broker a peace deal with the Taliban in the Swat val-
ley broke down at the end of April 2009, prompting the government to
attempt to dislodge them from Swat with military force.60 Operations
began in the beginning of May 2009, with an estimated 15,000
Pakistani troops deployed in the Swat valley. Military operations in Swat
have been followed by an on-going military campaign against the
Taliban to regain control of the tribal areas bordering Afghanistan.
In sharp contrast to the rise of the Taliban in remote areas of the
country, in the first decade of 2000 Pakistan’s elites have increasingly
turned against the wave of Islamisation measures of both the 1980s
and 1990s. An attempt by the MMA to introduce an Islamic ombuds-
man system in the North West Frontier Province was stopped in its
tracks by the Supreme Court, who declared the bill to be unconstitu-
tional.61 The infamous Zina Ordinance 1979 was reformed in 2006
when the Protection of Women’s Rights Act came into force. At the be-
ginning of 2010 neither the government nor the main opposition party
has expressed any desire to initiate measures to resume the
Islamisation of the legal system. Instead, private media channels and
national newspapers have began to engage with the topic of secularism,
inspired by the decision of the Bangladeshi government to remove re-
ferences to Islam from the Constitution of Bangladesh at the end of
February 2010.62

9.5 Constitutional law

State ideology and constitution

The current constitution dates back to 1973. It has since been amended
so many times that one can hardly refer to it as still being the same
constitution as it was at its inception (Mehdi 1994: 71). However, de-
spite many changes,63 it has retained some of the basic features shared
by all of Pakistan’s constitutions. Most importantly, the Constitution
408 MARTIN LAU

1973 is evidence of the partial success, and survival, of Jinnah’s two na-
tion-theory. The success must be described as partial since the
Constitution 1973 marks the beginning of a re-constituted, smaller
Pakistan, following the creation of Bangladesh in 1971. Nevertheless, it
reflects the state ideology of Pakistan, denoting it as an Islamic republic
and naming Islam as the state religion. At the root of the Constitution
1973 is, in the official terminology, Islam as the state ideology, which is
founded on the historic wish of the Muslims of British India to form
their own nation.
While having been created in the name of Islam, Pakistan has found
it difficult to define the precise of role of Islam in the life of the nation.
Was Pakistan a state created to enable Muslims to live in accordance
with Islamic law, or was it to be a state which enabled Muslims not to
live in a Hindu theocracy? In the case of the former, Pakistan’s legal
system would have to become an Islamic one. In case of the latter, no
particular prescriptions or conditions for the role of Islam in the newly-
founded state existed. Since the statements of Jinnah, the ‘sole spokes-
man’ of India’s Muslims, on this issue were ambiguous, it is the coun-
try’s own historical experience that has determined which role Islam
was to play in the project of nation building.
Like any other state, Pakistan calls in its constitution for obedience to
its laws. Throughout its history Pakistan has been facing challenges to
its legitimacy from Islamic groups who have claimed that the principle
duty of a Muslim is not to the state, or a constitution, but his religion.
The difficulties and problems inherent in the attempts to demarcate
and define of the role of Islam in Pakistan have led to a balancing act,
with the state and its elites trying to control the Islamic discourse and
to use it to their own advantage.
Controlling Islam and harnessing the forces of Islam for their own
purpose has been problematic. In respect of law, the first of these pro-
blems concerns the normative foundation of the legal system. Should
this foundation be based on the principles of Islam even if the constitu-
tion itself limits the role of Islam? Or is the fundamental norm located
in the constitution itself, which provides for the basic powers of the
state and primary rights of the citizens? The Pakistani state and its citi-
zens have not been able to build a sustainable consensus about a for-
mula which reconciles the secular and the religious elements within its
constitutional order. Throughout the nation’s history, appeals to Islam
have been used to foster state formation and national unity. At the same
time, the forces of Islamic radicalism, be it in the shape of Islamic par-
ties or of Islamic insurgents like the Taliban, have been able to take ad-
vantage of the state’s reliance on Islam: if Pakistan was founded in the
name of Islam, then how could Pakistan’s largely secular legal order be
justified?
SHARIA AND NATIONAL LAW IN PAKISTAN 409

At present, it can be stated that the pendulum has swung decisively

towards a more secular definition of the state. Gone are calls for
Islamisation, and instead there is debate about human rights, the
powers of the president and the future of the state itself, which is being
destabilised by almost daily terrorist attacks, all committed in the name
of Islam.
In 2010 it is the Constitution 1973 and not an ambiguous reliance on
an Islamic state which holds the nation together. But it cannot be for-
gotten that within the Constitution 1973 there are numerous references
to Islam, many of them constituting possible avenues for another wave
of Islamisation, should the state and its leaders decide that that Islam
needs to be resurrected for the survival of the nation.

The constitution and the rule of law

According to article 5(1) of the Constitution 1973, loyalty to the state is
the basic duty of every citizen, article 5(2) stipulates that ‘Obedience to
the Constitution and the law is the inviolable obligation of every citizen.
[…]’, and article 6(1) provides that ‘Any person who abrogates or at-
tempts or conspires to abrogate, subverts or attempts or conspires to
subvert the Constitution by use of force or show of force or by any
other unconstitutional means shall be guilty of high treason.’ This set
of provisions is concluded with article 6(2) which provides that ‘Any
person aiding or abetting acts mentioned in clause 1 shall likewise be
guilty of high treason.’
The provisions calling for constitutional obedience are accompanied
by Part II of the Constitution 1973, which contains constitutionally guar-
anteed fundamental rights. The most basic and important of these fun-
damental rights of the citizens are the ones to life and liberty (article 9),
to equality before the law (article 25), to freedom of expression (article
19) and to freedom of religion (article 20). Importantly, the Constitution
1973 contains express provisions for the enforcement of these rights.
Article 8(1) provides that ‘Any law, or any custom or usage having the
force of law, in so far as it is inconsistent with the rights conferred by
this Chapter, shall, to the extent of such inconsistency, be void.’ Articles
184 and 199 respectively grant the Supreme Court and the provincial
high courts the jurisdiction to declare laws and decisions null and void
if they are judged to violate fundamental rights. The importance and
reality of these two provisions is evidenced in the large number of pub-
lic interest cases for the enforcement of these rights which have been
brought before the higher courts. Interestingly, while these cases are
based on fundamental rights, which appear in the Constitution 1973
without any reference to Islam, they often ‘endorse Islamic principles
of justice’ (Lau 2006: 95-119). In many of these public interest litigation
410 MARTIN LAU

cases, references to Islam and Islamic principles of justice fulfil the role
that was previously played by ‘principles of natural justice’. References
to Islam have even been used to create new fundamental rights, such
as the right of justice and an absolute right to be heard. The jurispru-
dence of Pakistan’s higher judiciary demonstrates that a harmonic inter-
play between Islamic principles and human rights is possible, and that
references to Islam do not as of necessity result in a violation of basic
freedoms.

Islamic precepts as a basic norm

The dual character of the Constitution 1973 is revealed in its Islamic
provisions, which establish the Islamic foundation of the nation and
suggest that the precepts of Islam constitute the basic norm of the
Constitution. Article 1, stating that Pakistan is an Islamic republic and
that Islam is the state religion, is of a declaratory nature and has had lit-
tle legal effect in the development of Pakistan’s legal system. However,
as could be seen further above, Article 2A, added to the Constitution in
1985, has been used extensively by Pakistan courts in the context of con-
stitutional cases. Article 2A stipulates that ‘[t]he principles and provi-
sions set out in the Objectives Resolution are reproduced in the Annex
and hereby made substantial part of the Constitution and to have effect
accordingly.’ The Objectives Resolution 1949 was the first constitutional
document passed by Pakistan’s Constituent Assembly (see 9.2). Once
incorporated into the main body of the Constitution 1973 the Objectives
Resolution’s provision that ‘Muslims shall be enabled to order their
lives in the individual and collective spheres in accordance with the
teachings and requirements of Islam as set out in the Holy Quran and
Sunnah’ was taken up by judges in order to review the validity of laws
on the basis of Islam, and, throughout the 1990s, to justify an expan-
sive interpretation of the constitutionally guaranteed fundamental
rights.
In addition to Article 2A, references to Islam also appear in Chapter
2, entitled ‘Principles of Policy’. Article 29 provides that these princi-
ples cannot be enforced in any court, unlike the fundamental rights,
but that it is the responsibility of the state ‘to act in accordance with
those Principles in so far as they relate to the functions of the [state]’.
Article 31 of Chapter 2 repeats the duty of the state to enable Muslims
to order their lives in accordance with Islam, but adds more detail to
this duty: the state is asked to encourage Quranic studies and the teach-
ing of the Arabic language. Article 37 (h) enjoins the state to prohibit
the drinking of alcohol, with non-Muslims being exempted from this
provision as long as they consume alcohol for religious purposes.
Article 40 requires the state to ‘endeavour to preserve and strengthen
SHARIA AND NATIONAL LAW IN PAKISTAN 411

fraternal relations’ with other Muslim countries. Article 41(2)(a) speci-

fies that the president must be a Muslim.
Finally, Part 9 of the Constitution 1973, entitled ‘Islamic Provisions’,
contains Article 227(1), the famed ‘repugnancy’ article, which provides
that ‘All existing laws shall be brought in conformity with the
Injunctions of Islam as laid down in the Holy Quran and Sunna […]
and no law shall be enacted which is repugnant to such Injunctions.’
Similar to the approach adopted in the Constitutions of 1956 and 1962,
Article 227(1) could initially not be enforced in any court when the
Constitution 1973 was adopted. This changed in 1980 when the Federal
Shariat Court was created by Zia ul-Haq in order to review existing and
new legislation on the basis of Islam.

The Federal Shariat Court and the Council of Islamic Ideology

According to Article 203C, the Federal Shariat Court (FSC) consists of
not more than eight members, including a Chief Justice, not more than
four judges who should have the same qualification as a high court
judge, and a maximum of three religious scholars (ulama). Article
203D(1) provides that:

The Court may, either of its own motion or on the petition of a

citizen of Pakistan or the Federal Government or a Provincial
Government, examine and decide the question whether or not
any law or provision of law is repugnant to the Injunctions of
Islam, as laid down in the Holy Quran and Sunnah of the Holy
Prophet.

In addition, Article 203DD, establishes the FSC as the court of appeal

in all cases involving the Hudood Ordinances 1979. The seemingly
sweeping powers of the FSC are restricted by Articles 203B-C, which ex-
clude several important areas of law from the power of judicial review
by the FSC, in particular, the constitution, procedural law, and Islamic
personal status and family law. Its decisions are appealable to the
Shariat Appellate Bench of the Supreme Court. The Shariat Appellate
Bench of the Supreme Court is the highest and final court of appeal
and consists of five members: three Supreme Court judges and two ula-
ma appointed by the president (Art. 203F(3)). It must be emphasised
that the ulama constitute a numerical minority in both courts, and leg-
ally qualified judges the majority.
Article 228 deals with the Council of Islamic Ideology (CII). Its mem-
bers, whose number may not exceed twenty, are appointed on the basis
of their ‘knowledge of […] Islam, or their understanding of the econom-
ic, political, legal or administrative problems of Pakistan’. The CII has
412 MARTIN LAU

an advisory function, namely to make recommendations to the legisla-

tive and the executive on the manner in which the Islamisation of social
life may be realised. It can also advise on whether or not a law conflicts
with the injunctions of Islam and propose ways to restore conformity.
Finally, the Council is meant to identify those injunctions of Islam that
can be enacted as official legislation.
The position of the Council was strengthened by the establishment
of the FSC (Lau 2006: 32). Whenever the FSC declared a law to be in
conflict with the injunctions of Islam, the Council assumed the task of
drafting an Islamic alternative, which in turn could be used by the legis-
lature. This was, for example, the case with the drafting and eventual
implementation of the Islamic criminal law on murder and assault in
the form of the Criminal Law (Amendment) Act, 1997. In the 1980s
and 1990s the CII was an important driver in the Islamisation of the le-
gal system, but with the appointment of Mohammad Khalid Masud in
June 2004, the CII, which used to have a reputation of being rather
conservative, has developed a more moderate and progressive character.
Following amendments to the Zina Ordinance in 2006, the Jamaat-e-
Islami accused the Masud’s CII as being a ‘rubber stamp’ for the aboli-
tion of hadd punishments and other Islamic laws. (Imran 2006).

The judiciary and the Islamisation of laws

The FSC and the Supreme Court have ensured that stonings and ampu-
tations, punishments authorised under the Hudood Ordinances 1979,
have never been executed in Pakistan. After 1985, Islamists attempted
to use Article 2A in order to review the Islamic vires of laws and of the
constitution itself, not just before the FSC, whose jurisdiction was lim-
ited to certain areas of law, but also before the country’s high courts,
whose jurisdiction was, as they argued, unlimited in scope. Some high
court judges responded positively to these suits, invalidating even laws
that were expressly protected against amendment or judicial review by
the constitution itself, like the Muslim Family Laws Ordinance 1961.
Other judges refused, arguing that it was only the FSC that had the
power to review laws on the basis of Islam.
However, judicial activism in the name of Islam was considered con-
troversial within Pakistan’s higher judiciary. As discussed in section
9.4, between 1985 and 1992 judges like Justice Tanzil-ur-Rahman inva-
lidated a number of laws on the basis of Islam. In the process, they of-
ten embarked on personal campaigns to purify the legal system from
un-Islamic elements (Lau 2003: 200). This ‘golden period’ of unfettered
Islamisation lasted until 1992 when the Supreme Court intervened, de-
claring that article 2A could not be used as the basis for a review of leg-
islation.64 In the cases of Kaneez Fatima vs. Wali Muhammad (Lau
SHARIA AND NATIONAL LAW IN PAKISTAN 413

2002: 205) and Hakim Khan vs. Government of Pakistan (Lau 2003: 197-
202) the Supreme Court ruled that Article 2A may only be used in or-
der to interpret legislation and the Constitution but that the
Islamisation of the legal system itself was the duty of the legislature,
and not that of the courts. As a result of these decisions, a judicial re-
view of existing laws on the basis of Islam can only be undertaken by
the FSC. With these precedents, the period of judicial experimentation
with regards to the Islamisation of laws on the basis of Article 2A came
to an unambiguous end (Lau 2003: 202).

The politics of Islamisation

Since the late 1990s, legislators, judges, the FSC, and the Council of
Islamic Ideology have reached a common understanding as to the pace
and the direction of Islamisation: without exception, all efforts in this
regard have aimed at making existing Islamic laws more gender-sensi-
tive by reducing their negative impact on the position of women and to
produce interpretations of Islam that are in harmony with constitution-
ally-guaranteed fundamental rights. Many human rights violations were
committed during the reign of Musharraf from 1999 until August
2008. However, on the whole, they were perpetrated not in the name of
Islam, but rather in the fight against Islamic extremism, regional se-
paratist movements and political opponents. This does not make these
rights violations any less serious, but the change is nevertheless signifi-
cant because it signals the end of the period of radical Islamisation that
marked the Zia years and also parts of the 1990s.
The Enforcement of Shari’ah Act 1991, which was passed under
Nawaz Sharif’s government, bears the traces of a fundamental political
compromise. The 1991 Act has a primarily declaratory character, restat-
ing provisions from the constitution and its preamble. The seemingly
stringent provision contained in section 3(1) that ‘The Shari’ah, that is
to say the injunctions of Islam, as laid down in the Holy Quran and
Sunnah, shall be the supreme Law of Pakistan’ is followed by section 3
(2) which stipulates that the legal position of the current political sys-
tem, including the national parliament and the provincial parliaments
and the existing administrative system, may not become the subject of
review by any judicial body. In other words, rather than promoting
Islamisation through the courts, section 3(2) essentially protects the po-
litical system from potential judicial interference in the name of
Islamisation.
Other political compromises were needed with respect to the attempt
at Islamisation undertaken by the MMA government of the NWFP (see
9.4). Its Hisba Bill, which sought to set up an Islamic ombudsman sys-
tem, was not even allowed to make an appearance on the statute book,
414 MARTIN LAU

the bill itself having been declared unconstitutional before the provin-
cial governor could give his assent.65
Despite the overall slowing of the pace of Islamisation, there remain
in Pakistan significant areas that are governed by a mixture of custom-
ary and Islamic law, occasionally supplemented by Pakistani statutes ex-
tended to these areas. Entitled the Federally Administered Tribal Areas
(FATA), a belt of territories straddling the land along the Afghan and
Pakistani border, these areas have never been fully included in the law
of the land but instead have been governed directly by Islamabad under
special laws and constitutional provisions, such as the Frontier Crimes
Regulation 1901. The FATAs are directly ruled by a representative of the
government, the so-called ‘political agent’, who, in the manner of a qua-
si-colonial ‘indirect rule regime’, leaves matters of local administration
and conflict resolution to traditional councils. Important aspects of na-
tional and provincial legislation thus do not apply here.
A surge of Taliban activities in the tribal areas of Pakistan in 2008
and the beginning of 2009, with several areas, such as the Swat valley
near Islamabad, falling effectively under the control of the Taliban, has
left the government of Pakistan in a difficult position. Should the
armed forces fight the insurgents or should they be appeased, primarily
by giving in to the Taliban’s main demand, namely the introduction of
Islamic law and courts? In April 2009, the government chose the for-
mer, issuing the Sharia Nizam-e-Adl Regulation 2009 (SNA)66 as part
of a peace deal with the Taliban. In return, the Taliban promised to stop
all fighting, though they were not asked to disarm or disband.
At least on paper, the SNA aims to address the Taliban’s two main
criticisms of Swat’s legal system, namely the absence of Islamic law
and institutions and the long delays experienced by litigants and com-
plainants in the disposal of cases. With respect to the former, the SNA
provides for two measures. Firstly, it re-establishes the existing court
structures by providing for three tiers of courts, with Qazi courts at the
trial level, followed by an appeal court called a Zillah court, and an apex
court by the name of Dar-ul-Qaza. Secondly, the SNA provides that the
judges of these courts have to be judicial officers of the NWFP, but as
an additional qualification they also need to have completed a sharia
course from a recognised institution, defined as ‘the Shariah Academy
established under the International Islamic University Ordinance 1985
or any other institution imparting training in Uloom-e-Sharia and re-
cognised as such by the government’ (Section 2(e) of the SNA).
The government is also empowered to appoint executive magistrates
who enjoy exclusive jurisdiction over the trial of criminal offences con-
tained in the Pakistan Penal Code (1860) and carrying a punishment of
up to three years. However, in practice their jurisdiction goes well be-
yond the offences contained in the Pakistan Penal Code because they
SHARIA AND NATIONAL LAW IN PAKISTAN 415

can also try an individual for any offence under the established princi-
ples of sharia. What these offences are remains unspecified in the SNA
and seems to rest on the individual interpretation of the executive ma-
gistrate. Is the flying of kites or the shaving of beards against the estab-
lished principles of the sharia? In a similar vein, the SNA introduces
Islamic law as new substantive law for the area, providing in Section 19
(2) that:

Notwithstanding anything contained in any law for the time

being in force all cases […] shall be decided by the courts con-
cerned in accordance with Sharia’h: provided that cases of non-
Muslims in matters of adoption, divorce, dower, inheritance,
marriage, usages and wills shall be conducted and decided in ac-
cordance with their respective personal laws.

The SNA also lists a number of laws which continue to apply to the
Swat region, but even these laws can be ignored by a judge if in his opi-
nion they are not in accordance with the ‘Sharia’h’. The SNA also aims
to tackle delays by imposing strict time limits on the hearing and dispo-
sition of cases as well as encouraging out-of-court settlements. With the
Pakistani army having stepped up military operations against the
Taliban in Swat, on the ground that the peace deal had been breached
by them, there must be doubts about the future of the SNA, which has
also been criticised by the media and human rights organisations as
well as the international community. In addition, it appears that the
Taliban themselves have circumvented the system of official courts and
is at present enforcing their own interpretation of Islamic law through
commanders on the ground.

9.6 Family and inheritance law

The Muslim Family Laws Ordinance 1961

The main legislation in the area of family law is the Muslim Family
Laws Ordinance 1961 (MFLO). It represents a moderate interpretation
of Muslim family law, most importantly, restricting the rights of men in
the area of divorce and polygamy. Section 6 of the MFLO provides that
a husband who wants to marry a second wife needs to obtain the per-
mission of the Union Council, which then assesses whether the pro-
posed extra marriage is ‘necessary and just’ (MFLO, section 6(3)). Valid
reasons for a second wife include ‘sterility, physical infirmity, physical
unfitness for conjugal relations, wilful avoidance of a decree for restitu-
tion of conjugal rights, or insanity on the part of the existing wife’
(Mehdi 1994: 164). If the husband enters into a polygamous marriage
416 MARTIN LAU

without the permission of the Union Council, the first wife can seek a
divorce and the husband is liable to be punished with a fine or prison
sentence (MFLO, sections 5(a), 5(b)).
The MFLO also restricts the right of a Muslim husband to repudiate
his wife. Section 7(1) MFLO recognises the traditional unilateral repu-
diation (talaq) by the husband, but subjects a man using this kind of di-
vorce to a compulsory procedure which, if not followed strictly, will in-
validate his talaq. The repudiation only becomes legally valid ninety
days after the mandatory notification thereof to the Union Council, or
similar body of the local government, and to his wife. Failure to abide
by this obligation is punishable by a prison sentence of up to one year
or a fine of 5,000 rupees (approximately 44 Euros). After notification of
the divorce, the Union Council forms a mediation commission that is
tasked with attempting to bring about reconciliation between the hus-
band and his wife. The divorce only becomes valid after the expiry of
the ninety days, if no reconciliation of husband and wife is possible
within this period. In the absence of notification of the divorce to the
Union Council or the wife, the divorce is regarded as invalid.
Section 8 of the MFLO confirms that the husband can, at the time of
the marriage, delegate the right of divorce by repudiation to his wife.67
In addition to section 8 of the MFLO, there is also recent case law
which has extended the right of Muslim women to seek a judicial disso-
lution of their marriage. Women are now able to procure a divorce so-
lely on the basis of their own testimony to the effect that their marriage
has broken down and that they can no longer live with their husbands
‘within the limits of Allah’.
The criminalisation of adultery and fornication as a result of the Zina
Ordinance 1979, however, had an unintended effect on the umbrella of
procedures initially designed to offer some protection of women’s
rights. After the passing of the law, abandoned wives who had since re-
married were unexpectedly accused of adultery by their former hus-
bands, the latter claiming that because they had not followed the proce-
dures contained in Section 7 of the MFLO, they had never validly been
divorced, and hence were guilty of adultery. In order to protect the wo-
men involved, judges dealing with these cases often decided that the di-
vorce had been valid, despite non-compliance with the MFLO, thereby
weakening the obligatory character of the mandatory notification.
Consequently, some have claimed that men’s right to repudiation is
once again governed by the classical sharia rather than the MFLO
(Menski 1997: 30-31), but an analysis of recent legal rulings shows that
Section 7 is being upheld in cases concerning purely family, not crim-
inal law, matters. The Protection of Women Act 2006 has finally put
the matter to rest by providing that it is sufficient for a woman to be-
lieve herself to be validly married to avoid a charge of adultery. Thus,
SHARIA AND NATIONAL LAW IN PAKISTAN 417

even if the divorce preceding her re-marriage turns out to be invalid,

she will not face charges as long as she can convince the court that she
had reasons to believe that the divorce and her subsequent marriage
were valid (Lau 2007).

Inheritance law
Save for one reform brought about by the MFLO, which introduces into
Pakistani law a rule of Maliki law,68 inheritance law remains governed
by classical sharia regulations on this subject, although these norms
have never actually been codified into legislation or legal codes. Whilst
being discriminatory towards women, who as a general rule inherit only
half of what is due to a man, the Islamic law of inheritance was never-
theless a significant improvement on pre-Islamic tribal customs, under
which women inherited little or nothing at all. To this day, many wo-
men in Pakistan are deprived of their inheritance rights under Islamic
law because families prefer to follow customary laws, which often ex-
clude women from inheriting. In many regions of Pakistan, women are
still completely excluded from the inheritance.69
In 2003, the Justice and Law Commission of Pakistan argued for a
better monitoring of the implementation of Islamic inheritance law. In
its report, the commission observed that women and children were of-
ten robbed of the inheritance to which they were entitled under
Quranic law by a multitude of tricks and false promises. Islamic inheri-
tance law, the commission claimed, was a command coming directly
from God and a legal obligation that had to be abided by in letter and
in spirit. It, therefore, asked its secretary to devise an effective plan of
action aimed at achieving compliance with inheritance law, especially
regarding the rights of women and children.70 To date, no such action
plan has been launched.

9.7 Criminal law

The legal codes introduced by the British form the basis of Pakistani
criminal law. The codes in question are the Pakistan Penal Code 1860,
the Code of Criminal Procedure 1898, and the Evidence Act 1872.
These laws were substantially amended as a result of Islamisation mea-
sures. This applies to the area of blasphemy, where amendments to the
Pakistan Penal Code took place in 1980, 1982, and 1986, the
Ahmadiyya-specific amendments in the Pakistan Penal Code (1984),
and the incorporation of Islamic law on murder and assault in 1997.
With the exception of the Zina Ordinance 1979, which was substantially
amended by the Protection of Women Act 2006, the Hudood
Ordinances of 1979 remain in force.
418 MARTIN LAU

The Hudood Ordinances and the Women’s Protection Bill

The socalled Hudood Ordinances, promulgated by Zia ul-Haq in 1979,
actually consist of four separate ordinances, namely the Offences
against Property (Enforcement of Hudood) Ordinance 1979, the
Offence of Zina (Enforcement of Hudood) Ordinance 1979, the
Offence of Qazf (Enforcement of Hadd) Ordinance 1979, and the
Prohibition (Enforcement of Hadd) Order 1979. Collectively known as
the ‘Hudood Ordinances’, they were meant to Islamise Pakistan’s cor-
pus of criminal law. The Hudood Ordinances 1979 provide for corporal
punishments for offences falling under the five hadd crimes. These
punishments include the amputation of limbs, death by stoning, and
flogging; the most severe of these hadd punishments, namely death by
stoning, has never actually been executed in Pakistan. Higher judicial
authorities have blocked executions by stoning (see below) as they have
also consistently prevented amputations from being executed. Flogging,
either in public or inside prisons, however, was executed on a regular
basis during the 1980s. Corporal punishments can also be imposed for
the hadd offences of drinking of alcohol and false accusations of illegal
sexual relations, which are punishable by eighty lashes.
About half of the criminal cases brought before the courts under the
Hudood Ordinances were concerned with the Zina Ordinance
(Chadbourne 1999: 3). Prior to its amendment in 2006, the Zina
Ordiance made any sexual intercourse outside a valid marriage a crim-
inal offence. If the guilty party was married at the time of the offence
or had been married previously, the punishment was death by stoning,
as long as four male, adult, Muslim witnesses of the highest moral
standing had witnessed the illicit congress. In all other cases, zina was
punishable by lashes or imprisonment, or both.
In many cases, the punishments awarded by trial courts were re-
duced on appeal, or the accused acquitted. The Zina Ordinance itself
was reviewed on the basis of Islam by the Federal Shariat Court in
1981. In its decision, the Federal Shariat Court ruled 4 to 1 that death
by stoning was against the principles of Islam and that hundred lashes
was the correct punishment for the offence of adultery (Khan 2001:
641). Zia managed to get the decision overturned after replacing the
judges of the FSC with more compliant ones. In 1982, a newly consti-
tuted Federal Shariat Court overruled its own previous decision, finding
punishment of stoning to death in accordance with Islam. Despite this
decision, both the Supreme Court and the Federal Shariat Court have
maintained their overall reticent attitude with regard to severe corporal
punishments.
With the amendment of the Zina Ordinance in 2006, its adverse im-
pact on women’s rights is much reduced. As a result of the Protection
SHARIA AND NATIONAL LAW IN PAKISTAN 419

of Women Act 2006 rape and fornication are no longer treated as

Islamic hadd crimes, but are governed by the Pakistan Penal Code, thus
removing them from the jurisdiction of the Federal Shariat Court. The
Zina Ordinance as it currently stands only deals with the hadd offence
of adultery, but the procedural and evidential hurdles to be surmounted
before a woman can even be charged with the crime are such that it is
unlikely that there will be many, if any, convictions. The passing of the
bill led to much political upheaval and clearly illustrated the profound
dichotomy permeating the Pakistani political scene. The bill was sup-
ported in the National Assembly by Benazir Bhutto’s opposition party
PPP as well as President Musharraf’s party and the other parties in his
governing coalition. In fact, the PPP, along with other liberal-minded
parties and individuals, continues to call for a complete repeal of all
Hudood Ordinances. In contrast, the MMA and other Islamic parties
voiced their strong criticism of the bill, calling it un-Islamic. MMA’s
general secretary Maulana Fazlur Rehman, for example, warned that
the bill would ‘make Pakistan a free sex zone’.71

The blasphemy laws

Since 1980, Section 298A of the Pakistan Penal Code stipulates that:

Whoever by words, either spoken or written, or by visible repre-

sentation, or by any imputation, innuendo or insinuation, di-
rectly or indirectly, defiles the sacred name of any wife (Ummul
Mumineen), or members of the family (Ahle-bait), of the Holy
Prophet (peace be upon him), or any of the righteous Caliphs
(Khulafa-e-Rashideen) or companions (Sahaaba) of the Holy
Prophet (peace be upon him) shall be punished with imprison-
ment of either description for a term which may extend to three
years, or with fine, or with both.72

Blasphemous words, spoken or written, and visual representations are

punishable.73 Since 1982, imprisonment for life has been stipulated for
the wilful damaging, defaming, abusing, denunciation, and improper
use of a copy of the Quran (S. 295B). In 1991, the punishment for blas-
phemy was enhanced to the death sentence as a result of a ruling of the
Federal Shariat Court, which held that the alternative punishment of
imprisonment for life was contrary to Islam74. An appeal against the de-
cision was rejected by the Shariat Appellate Bench of the Supreme
Court in 200975. Following the religiously motivated murder of eight
Christians in the Punjabi village of Gojra in July 2009, Pakistan
Minister for Minorities announced that the government would review
the blasphemy laws because “This law is being misused. People have
420 MARTIN LAU

been extrajudicially killed and falsely implicated and are now behind
bars.”76

The Ahmadi-specific criminal laws of 1984

Under these laws, members of the Ahmadiyya community face a prison
sentence of up to three years when they refer to themselves as Muslims
or attempt to propagate their faith (PPC, S. 298B). The same punish-
ment is applicable whenever they undertake any public act that may
‘outrage’ the religious beliefs of Muslims in any possible way (PPC, S.
298C).

Islamic criminal law of murder and assault

Starting in 1980, Pakistan’s Federal Shariat Court decided in a number
of cases that the law on murder and bodily harm, as contained in the
Pakistan Penal Code, was un-Islamic because it did not allow the victim
of an assault, or, in the case of murder, his heir, to determine how the
offender should be treated. Classical Islamic law allows the victim or
his heirs three options: firstly, they can demand monetary compensa-
tion from the perpetrator of the crime; secondly, they can insist on him
being punished; and lastly, they can pardon him. As a result, the degree
of punishment – retribution, financial compensation (‘blood money’),
or pardon – is in principle decided upon by the victim or the victim’s
family. When and if the victim dies, the family can demand the death
penalty. In cases of physical injury the victim may also demand retribu-
tion. This could mean that the perpetrator of the crime has to face a
mutilating punishment in accordance with the principle of ‘an eye for
an eye, a tooth for a tooth’. In 1997 this Islamic criminal law of murder
and assault was incorporated into the Pakistan Penal Code under the
provisions of the Criminal Law (Amendment) Act (1997). In recent
years, complaints have been raised against the practice of ‘buying off’
punishments for murder through the payment of blood money, but as
yet the law has not been amended in response to these criticisms, save
for the area of honour crimes, which are now punishable by twenty
years’ imprisonment, irrespective of any compromise with the family of
the victim or pardon by them (Wasti 2009).

9.8 Other areas of law

A number of laws are aimed at the creation of an Islamic economy and

social welfare system. The Constitution of 1973 contains directives that
enjoin the state to abolish interest (riba), to set up a tax to support the
poor (zakat), and to maintain religious trusts (waqf) and mosques. The
SHARIA AND NATIONAL LAW IN PAKISTAN 421

Enforcement of Sharia Act 1991 provides that the state must establish
an Islamic economy and calls for the establishment of a supervisory
commission to oversee the ‘total elimination of riba’. Islamic taxation or
zakat is enforced through the Zakat and Ushr Ordinance 1980.
Despite these attempts, the present legal situation is not very differ-
ent from the situation at the beginning of the Islamisation process un-
der Zia in 1977. During the 1980s, a number of judges declared the
charging or payment of interest to be ‘un-Islamic’, and hence unlawful.
In 2000, however, the Shariat Appellate Bench of the Supreme Court
found that the previous decisions had been procedurally flawed and
sent the matter back to the Federal Shariat Court for a complete retrial.
To this day, the matter remains unresolved, with the case pending be-
fore the FSC and no indication as to when it is going to be heard. In
the meantime, there have been several commissions which have investi-
gated the viability of a financial and economic system based on Islam.
The principle of zakat forms an Islamic contribution to the concept
of social justice and redistribution. The Zakat and Ushr Ordinance has
introduced to Pakistan some features of an Islamic welfare state, in that
the rich are asked to pay a tax on their wealth, which in turn is distribu-
ted to the poor.77 Under the Zakat and Ushr Ordinance, a 2.5 per cent
tax is imposed on the estate of every Muslim, which is then used to pro-
vide maintenance for the poor and needy. Local zakat commissions de-
cide who is entitled to receive such public support. These commissions
are also responsible for collecting the money, under the supervision of
the Bureau of Zakat and Ushr of the Ministry of Religious Affairs
(Shamim 2004). Following protests, Zia exempted Shias from the pay-
ment of zakat. Ushr, the religious tax on agricultural proceeds, is also
covered by the 1980 Ordinance.

9.9 International treaty obligations and human rights

Compared with other Muslim countries, Pakistan has been slow in ac-
ceding to international human rights treaties. In the 1990s, under the
two governments of Benazir Bhutto, Pakistan acceded to the
Convention on the Rights of the Child CRC) in 1990, and to the
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) in 1996. In respect of the latter, Pakistan stated that
its ratification ‘[...] is subject to the provisions of the Constitution of the
Islamic Republic of Pakistan’. However, in recent years Pakistan has
shown more commitment to international human rights treaties. In
April 2008 Pakistan signed the International Covenant on Civil and
Political Rights and the U.N. Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment and ratified
the International Covenant on Economic, Social and Cultural Rights.
422 MARTIN LAU

The elements of legally-implemented sharia in Pakistan conflict on a

number of points with the corpus of internationally accepted human
rights. Execution by stoning, amputation, the potential application of
the rules of retribution, and flogging, for instance, all conflict with the
international prohibition on torture or cruel, inhuman, or degrading
treatment or punishment. In addition, a number of conflicts exist with
the principle of equality, namely the unequal treatment of men and wo-
men and of Muslims and non-Muslims. This is the case with personal
status, family and inheritance laws, and criminal law, both from a theo-
retical and a practical perspective. The sharia codes also tread a fine line
with regards to the principle of freedom of religion. Although apostasy
is not formally made punishable through the Hudood Ordinances, it
does constitute an integral part of the classical doctrine and, as such,
has an impact upon the legal status of people. Muslims who change
their religion risk losing their civil rights; an apostate, for example, may
not marry or acquire real estate. Blasphemy laws contravene the right to
freedom of expression. And finally, the Hudood Ordinances appear in
some cases to contravene the 1989 CRC agreement. According to classi-
cal sharia, adulthood begins with puberty. This means that young teens
can, in principle, be tried as adults and may face hadd punishments.
In many areas of Pakistan, an atmosphere of religious intolerance
prevails. Communities of religious minorities, such as Ahmadis,
Hindus, and Christians, are sometimes the victims of physical violence
and intimidation. Formal constitutional recognition of rights such as
freedom of religion and the principle of equality have done little to
abate this.
Amnesty International and other human rights groups and institu-
tions such as the Human Rights Commission of Pakistan, regularly re-
port on a wide range of human rights violations. It should be noted,
however, that the vast majority of these rights violations are not directly,
or even tangentially, related to sharia or sharia-based legislation. Rather,
these violations have more to do with a culture of governmental lawless-
ness and impunity. Torture is a widespread phenomenon at police sta-
tions and in prisons. It is also of great concern that hundreds of people
have been arrested in connection with the global war on terror and
summarily handed over to the United States without even the pretence
of first having received a trial in Pakistan. Every year, hundreds of wo-
men become the victim of tribal honour killings. There is frequent sec-
tarian violence between Sunnis and Shias. The most oppressive aspect
of Islamic criminal law is seen in the application of the blasphemy laws.
Sometimes people are imprisoned on the basis of false accusations of
blasphemy.
SHARIA AND NATIONAL LAW IN PAKISTAN 423

9.10 Conclusion

Pakistan, created as a result of the partition of British India into two in-
dependent states had a difficult start as a modern state. While the coun-
try consists mostly of Sunni Muslims, it is strongly divided along eth-
nic, socio-economic, and political lines. Issues of security, the army, and
the police occupy a central place in Pakistani state policy due to decades
of ongoing conflict, in Kashmir, in Afghanistan and its Pakistani bor-
derlands, as well as the permanent state of tension with India. Poverty
is large-scale and widespread. Women often face particularly difficult
circumstances in this patriarchal and traditional society, as do religious
minorities.
Pakistan has inherited a colonial legal system marked by the legal va-
lues, procedures, and laws of Great Britain. This means that private
property law, civil and administrative law, criminal law, criminal and ci-
vil procedure, as well as most other areas of law continue to have a dis-
tinctly British character. Family and inheritance law are no exception:
although many sharia rules apply to these legal areas, many aspects of
these particular regulations have been codified using British legal
terminology.
Following Pakistan’s independence, the question whether or not shar-
ia should play a larger role quickly gained prominence. The Pakistani
national identity as ‘the state for Muslims’ has been an enduringly cen-
tral issue for politicians and jurists. The tension between modernists
and conservatives in how this identity should be formally and practically
implemented has had a significant impact on political and legal devel-
opments. In the constitutions of 1956, 1962, and 1973, enacted under
Prime Minister Zulfikar Ali Bhutto, Islam was allotted a central, but lar-
gely symbolic, role.
This changed in 1977, however, when Zia ul-Haq embarked on a pol-
icy of Islamisation, which included not just the promulgation of Islamic
criminal laws, but also profound changes to the Constitution 1973, in-
cluding the creation of the Federal Shariat Court in 1980. In order to
Islamise the economy, in 1983 the collection and payment of interest
was prohibited. And in 1985, a constitutional amendment was intro-
duced granting Islam an even more central and pivotal role in the con-
stitution. Islamisation could gain steam, in part due to the rise of politi-
cal Islam in other countries.
Zia ul-Haq eagerly presented himself as the saviour of Islam, opted
for a strict, conservative interpretation of Islam, and indeed made this
interpretation the backbone of his political leadership. Many historians
retrospectively see Zia’s policy as an ill-disguised attempt at legitimising
his coup d’état and subverting the democratic forces. It must be noted
that the fundamentalist parties, on whose ideologies Zia based his
424 MARTIN LAU

political thinking, have consistently received few votes in successive

elections.
Between 1985 and 1992, the judiciary played an increasingly activist
role pertaining to the Islamisation of the legal system. Initially, judges
contradicted one another freely, and legal insecurity increased. It was
only in 1992 the highest judicial authorities proved themselves unwill-
ing to allow the rule of law to be subjugated to exceedingly conservative
interpretations of the sharia (Lau 2003, 2006).
Even in the 1990s, however, some Islamisation legislation was intro-
duced, such as the Enforcement of Shari’ah Act in 1991, and the 1997
criminal legislation on retribution and blood money, whereas in North-
Western Province in 2003 a provincial by-law was enacted on the enfor-
cement of the sharia.78
Nonetheless, the tentative outcome of the Islamisation project has
not at all yielded a favourable balance to the fundamentalists’ advantage.
The relatively liberal family legislation of 1961 has remained untouched,
and the opportunities for women to independently obtain a divorce have
been significantly expanded. The heaviest corporal punishments such
as stoning and amputation have never been applied in Pakistan because
the highest judicial authorities have consistently been opposed to their
execution. The prohibition on interest is also not upheld by these same
judges, and on this point, ‘progress’ for the conservatives has been lim-
ited to the establishment of a commission in 2002 to study the
Islamisation of the economy in other Muslim countries. The 2003
NWFP Hisba Bill remained still-borne and, thus, without actual legal
consequence. All in all, the Islamisation project has lost much of its for-
mer momentum.
The fate of the Zina Ordinance 1979 underscores this point. In the
years following its promulgation, resistance to the Ordinance did not
lessen. This was all the more so because of the tendency of ill-disposed
men, sometimes with the help of the authorities, to use the law as a
tool to harass wives they had abandoned or women who had been
raped. In the majority of these cases the accused women were acquitted
on appeal to the Federal Shariat Court because there was insufficient
evidence for a conviction. However, until then many of the women
charged under the Zina Ordinance had spent many years in jail, await-
ing the outcome of their appeals. In November 2006, the Protection of
Women Act was passed. This law improved the legal position of women
in rape and adultery cases.
Islamisation of laws has also had unexpectedly positive effects with
respect to the rule of law. After all, while the judicial authorities were
grappling with the issue of Islamisation, another conflict continuously
simmered in the background, one of no less importance to the judges:
the battle against authoritarian government leaders and for the
SHARIA AND NATIONAL LAW IN PAKISTAN 425

judiciary’s own independence, for the rule of law, and for democracy. In
this struggle existing legislation did not offer the judges much help be-
cause laws were under the control of the government and the govern-
ment-dominated parliament. So, judges often called upon fundamental
legal principles and began using Islamic concepts such as ‘Islamic jus-
tice’ and ‘public interest’ (Lau 2003). As is the case in India, a series of
‘public interest’ cases has also arisen in Pakistan. Unlike the secular
system of India, however, this progressive development in Pakistan
owes much to liberal interpretations of the sharia.
The process of establishing a truly democratic constitutional state
and true enforcement of human rights still has a long way to go in
Pakistan. From the coup d’état in 1999 until August 2008, Pakistan was
ruled by Pervez Musharraf, an authoritarian military leader following a
pro-American course, who had a moderate image as far as the sharia is
concerned. He saw himself confronted with large socio-economic and
political problems, as well as strong opposition from both democratic
parties and fundamentalist groups. His aid in the American ‘war on ter-
ror’ was rewarded with much economic and military help for Pakistan.
Nonetheless, this led – in addition to his persistent authoritarian leader-
ship – to much criticism and discontent among the Pakistani popula-
tion. This was reflected in the 2002 elections by the growth of protest
votes cast for the conservative religious MMA alliance, although this
coalition’s share of the vote fell again in the 2005 local elections.
Musharraf’s reign came to an end in August 2008, when he was forced
to resign or face impeachment proceedings to be brought by the gov-
ernment of the PPP, which ultimately emerged victorious in the 2008
national elections.
How the position and role of classical sharia will be further developed
in Pakistan’s national legal system will depend largely on the political
choices to be made by the PPP, choices pertaining to socio-economic
development, electoral results, political stability, relations with the West,
Iran and China, and last but not least, to the Pakistani judicial authori-
ties. At present, faced with the violent attacks carried out by Islamic ex-
tremists not just in the tribal areas but in the very hearts of Pakistan’s
cities, politicians seem to have lost any interest in pursuing a policy of
Islamisation.

Notes

1 This chapter is a thorough rewrite, at the request of the editor of this book, of a chap-
ter by M.G. Barends and J.M. Otto in a Dutch research publication prepared for the
Scientific Council for Government Policy (WRR) in the Netherlands, published in
Otto, Dekker & van Soest-Zuurdeeg (red.) 2006: 235-267.
426 MARTIN LAU

2 Martin Lau is a Reader in Law at the School of Oriental and African Studies,
University of London.
3 The East India Company had been granted the exclusive right to conduct business
with and in India by the British Crown in successive Charters, the first dating back
to 1600. This system came to an end in 1958 when the areas controlled by East India
Company became the crown colony of British India.
4 Sati is the Sanskrit term to describe the practice of a Hindu widow to burn herself
on the funeral pyre of her dead husband. The practice was outlawed in 1929, see the
Sati Abolition Act, 1929.
5 ‘Proclamation by the Queen in Council to the Princes, Chiefs, and People of India’ of
1 November 1858, British Library, BL/MSS Eur D620. A copy of the original text of the
Proclamation of 1858 can be accessed on the website of the British Library at http://
www.movinghere.org.uk/deliveryfiles/BL/Mss_Eur_D620/0/1.pdf (accessed February
2010).
6 The Code of Criminal Procedure 1898 and the Code of Civil Procedure 1908.
7 Khan (2001: 20) has the following to say about this: ‘This Act provided for speedy
trial of offences by a special court consisting of three High Court Judges. This Court
could meet in camera to take into consideration evidence not otherwise admissible
under the Evidence Act. No appeal was provided against the decision of the court.
Provincial governments were also given wide powers in matters of arrest, searches
and seizures, confinement of suspects, censorship, and so on.’
8 In Pakistan, the exclusion of agricultural land from the 1937 Act was only removed
in 1962, see the West Pakistan Muslim Personal Law (Shariat) Application Act 1962.
In India, the exclusion of agricultural land continues to apply in most states, thereby
excluding preventing women from inheriting agricultural land (Agarwal 2005).
9 Hindu politicians only agreed to support the passage of the 1939 Act on the condi-
tion that it did not apply to Muslim wives who had converted to Islam prior to their
marriage. In the 1930s there were concerns that Muslim mobs forced Hindu women
to convert to Islam and to marry Muslim men against their will. As a result the 1939
Act contains a provision that section 4 of the Act does not ‘apply to a woman con-
verted to Islam from some other faith who re-embraces her former faith.’ Hence, a
Hindu woman who had converted to Islam continues to be able to dissolve her
Muslim marriage simply by re-embracing Hinduism without any recourse to a court
of law being required.
10 Section 7 of the Indian Independence Act of 1947 provided that ‘As from the ap-
pointed day [August 15], His Majesty’s Government in the United Kingdom have no
responsibility as respects the government of any of the territories which, immediately
before that day, were included in British India;…’
11 The Government of India Act, 1935, as adopted by the Pakistan (Provisional
Constitution) Order, 1947.
12 The first Constituent Assembly to be convened was supposed to frame a constitution
for the whole of British India. However, the Muslim League boycotted it on the
ground that there should be two assemblies, drafting the constitutions of Pakistan
and India. India’s Constituent Assembly had adopted an Objectives Resolution on 22
January 1947 and its Constitution on 26 November 1949. By comparison, Pakistan’s
Constituent Assembly was created on the basis of a Notification of the Government
of India on 26 July 1947, less than three weeks before independence, and convened
for the first time on 10 August 1947. The Constituent Assembly adopted the
Objectives Resolution on 12 March 1949 and its first Constitution on 2 March 1956.
13 The members of Pakistan’s first Constituent Assembly had been determined through
provincial elections in 1946-47. All Muslim seats except one were held by members
of the Muslim League. The Muslim League was only open to Muslims. The twelve
SHARIA AND NATIONAL LAW IN PAKISTAN 427

million Hindus who remained in Pakistan after partition were represented by twelve
members of the Congress Party, while the Schedules Castes (low-caste Hindus) were
represented by three members of the Congress Party and one representative of the
Schedules Castes Federation. Christians and Parsees did not have any representation
in the Constituent Assembly. The number of non-Muslim citizens of Pakistan was
much larger in 1947 than it is now: in East Pakistan at least one quarter of the popu-
lation belonged to the Hindu religion. See Symonds 1950: 97-99.
14 Speech by S. C. Chattopadhaya, the leader of the Congress Party, see Choudhury
1967: 970.
15 The Government of India Act, 1935 as amended by the India Independence Act,
1947 and subsequent Pakistani amendments.
16 The Constituent Assembly had formed a Basic Principles Committee on 12 March
1949. The latter included a Board of Islamic Teachings ( Talimat-i-Islamiyah ) charged
with giving advice on Islamic matters. Its recommendations were largely ignored by
the Basic Principles Committee leading to the formation of a coalition of Islamic par-
ties which agreed 22 fundamental principles of an Islamic state (Pirzada 2000: 18-
19). The text of the principles is contained as Appendix B in Hassan 1985: 263-284.
17 Riba denotes the charging of interest in a financial transaction, such as a loan. The
precise translation and indeed meaning of the term riba is, however, considered con-
troversial. In Pakistan, the campaign to ban riba has been highly visible but largely
unsuccessful. See Hassan, P. and Azfar, A. 2001.
18 Following independence, the Muslim League’s hold over East Pakistan’s politics be-
came increasingly tenuous. In April 1954, provincial elections in East Bengal re-
moved the Muslim League almost completely from the provincial legislative assem-
bly, which was now dominated by a coalition of Bengali parties united under the slo-
gan ‘Bengal for the Bengalis’. After a spate of violence around Dacca, the provincial
government was dismissed and East Bengal was ruled directly from Karachi. See
Burks 1954: 544.
19 Report of the Court of Inquiry Constituted under Punjab Act II of 1954 to Enquire
into the Punjab Disturbances of 1953.
20 In fact, the name had already been changed by presidential order to a simple
‘Pakistan’ shortly after the coup d’état, on October 11, 1958. Ibid: 195.
21 Apart from appeasing the Islamists, the first amendment to the 1962 Constitution
also aimed to silence the legal community which had demanded that the fundamen-
tal rights were made justiciable, see Articles 30 and 98(2) of the 1962 Constitution.
See Braibanti 1965: 81. However, the Islamic parties failed in their demand for a re-
peal of the MFLO 1961, see Pirzada 2000: 26.
22 See part 10, chap. 1, 1962 Constitution.
23 Since 1980, the Islamic Research Institute has been part of the International Islamic
University, Islamabad.
24 Article 207, 1962 Constitution.
25 The most significant legal intervention came in the form of the Muslim Family Laws
Ordinance of 1961, which reformed some aspects of Islamic family law, principally to
improve the legal position of women. See Jahangir 1998.
26 See for instance Mr Fazlul Quader Chowdhury v. Mr. Mohammed Abdul Haque PLD
1963 SC 486.
27 See articles 227 to 231, Constitution 1973.
28 3rd Schedule, Constitution 1973.
29 Article 2, Constitution 1973.
30 See Article 106 (3) of the Constitution 1973. Article 106 (3) was amended in 2002
under the provisions of the Legal Framework Order 2002 and the Constitution
(Seventeenth) Amendment Act 2003, removing any direct reference to who is
428 MARTIN LAU

regarded as a non-Muslim for the purpose of seats reserved for non-Muslim

minorities.
31 The definition of who is and who is not a Muslim was further refined in 1985 when
the following text was added to Article 260(3) (b): ‘(b) “non-Muslim” means a person
who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh,
Budhhist or Parsi community, a person of the Quadiani Group or the Lahori Group
(who call themselves “Ahmadis” or by any other name), or a Bahai, and a person be-
longing to any of the scheduled castes’. See section 6 of the Constitution (Third)
Amendment Order 1985 as incorporated by section 19 of the Constitution (Eighth)
Amendment Act 1985.
32 Article 58(2) b, Constitution 1973.
33 Ordinance XX of 1985, inserting new sections 298A and 298B to the Pakistan Penal
Code 1860.
34 Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97.
35 See for instance Asma Jilani v. The Government of Punjab 1972 SC 139 where the
Supreme Court relied on Islamic principles of democracy to declare the coup d’état of
Yahya Khan in 1969 unconstitutional.
36 See for instance Nizam Khan v. Additional District Judge, Lyallpur PLD 1976 Lahore
930.
37 The Constitution (Amendment) Order 1980.
38 See article 203B( c), Constitution 1973. For the first ten years, fiscal and banking laws
were excluded from the jurisdiction of the Federal Shariat Court. This temporary bar
came to an end in 1990.
39 See the Criminal Law (Amendment) Act 1997. Under this law the heirs of a murder
victim determine the fate of the murderer and have the right to decide whether he
should be punished, pardoned or be ordered to pay monetary compensation.
40 Mahmood-ur-Rahman Faisal v. Secretary, Ministry of Law PLD 1992 FSC 1.
41 Mirza Qamar Raza v. Tahira Begum PLD 1988 Kar 169.
42 Irashad H. Khan v. Parveen Ajaz PLD 1987 Kar 466.
43 Bank of Oman Ltd v. East Trading Co. Ltd. PLD 1987 Kar 404, p. 445.
44 Hakim Khan v. Government of Pakistan PLD 1992 SC 595, at p. 617.
45 Hakim Khan v. Government of Pakistan PLD 1992 SC 595 and Mst Kaneez Fatima v.
Wali Muhammad PLD 1993 SC 909.
46 Reproduced in PLD 1991 J 1, at p. 142.
47 Zaheeruddin v. The State 1993 SCMR 1718.
48 The Oath of Judges Order 2000 was promulgated just one week before the Supreme
Court was due to hear a case challenging the legitimacy of the military takeover.
49 See Zafar Ali Shah v. General Pervez Musharraf, PLD 2000 SC 869.
50 New Article 152A, Constitution 1973.
51 New Article 270 AAA, Constitution 1973.
52 Article 63, Constitution 1973.
53 Watan Party vs. Federation of Pakistan, PLD 2006 SC 697.
54 Mr Justice Iftikhar Muhammad Chaudhry vs. President of Pakistan, PLD 2007 SC 578.
55 Pakistan Muslim League (N) v. Federation of Pakistan, PLD 2007 SC 642.
56 Pakistan Muslim League (N) v. Federation of Pakistan, PLD 2007 SC 642, p. 673.
57 For a detailed analysis of these developments see Lau 2009.
58 The significance of the 3 November 2007 Order only became apparent two years la-
ter, when the Supreme Court ruled that the actions of Musharraf had been unconsti-
tutional. See Sindh High Court Bar Association vs. Federation of Pakistan, 31 July 2009,
judgment available on the website of the Supreme Court of Pakistan: http://www.su-
premecourt.gov.pk/web/user_files/File/const.p.9&8of2009.pdf, last accessed on 25
February 2010.
SHARIA AND NATIONAL LAW IN PAKISTAN 429

59 See the Revocation of Proclamation of Emergency Order 2007, Repeal of Provisional

Constitution Order, Revival of Constitutional Order, Establishment of Islamabad
High Court Order and grant of pension benefits to judges who had either refused or
had not been invited by the government to take the oath under the PCO.
60 On the conflict about introduction of sharia law in the Swat valley see 9.5, subsection
on the politics of Islamisation.
61 See BBC News, ‘“Taliban law” blocked in Pakistan’: http://news.bbc.co.uk/2/hi/
south_asia/6182395.stm, dated 25 September 2006.
62 See ‘Bangladesh to return to its secular roots’, Reuters News: http://in.reuters.com/
article/southAsiaNews/idINIndia-46335820100221, dated 21 February 2010.
63 At the time of writing this chapter, Pakistan’s parliament is debating the 18th amend-
ment to the Constitution, which is supposed the Constitution 1973 to its original
form, at least as far as the powers of the president are concerned. Changes to the
Islamic additions effected under Zia’s rule are not on the agenda.
64 Speaking about this period, the Pakistan Supreme Court commented in one of its
judgments in 1991 that the 1990s had been ‘a time of controversy and debate with-
out precedence’ (Lau 2003: 175).
65 See BBC, ‘Taliban Law Blocked in Pakistan’, 15 December 2006, at: http://news.bbc.
co.uk/1/hi/world/south_asia/6182395.stm, accessed 25 March 2010.
66 The text of the SNA is available on a number of websites, see for instance Associated
Press of Pakistan at: http://www.app.com.pk/en_/index.php?option=com_content&
task=view&id=73492&Itemid=2, accessed April 2009.
67 According to Menski (1997), a number of noteworthy jurisprudential developments
have occurred during the last decades. The most important of these developments is
perhaps that the possibilities for women to have their marriage annulled under
Article 8 have been significantly expanded upon. This has been the case since the
landmark judgment in the Khurshid Bibi trial of 1967.
68 See Section 4 of the Muslim Family Laws Ordinance 1961.
69 See Pakistan Observer (2004), ‘Majida urges provinces to name members for
NCSW’, http://pakobserver.net/200411/01/news/lahore03.asp, dated 1 November.
70 Dawn (2003), ‘Law Commission seeks proposals: Effective inheritance law enforce-
ment’, Dawn: The Internet Edition, see http://www.dawn.com/2003/01/02/top11.htm,
dated 2 January 2003.
71 Daily Times, dated 16 November 2006.
72 Inserted by Pakistan Penal Code (Second Amendment) Ordinance, XLIV of 1980.
73 See Section 295C of the Pakistan Penal Code (1860), inserted by the Criminal Law
(Amendment) Act, III of 1986.
74 Muhammad Ismail Qureshi v. Pakistan PLD 1991 FSC 10.
75 The decision has not been reported as yet but see ‘Pak SC rejects petition challenging
death as the only punishment for blasphemy’, Pakistan News Net, 22 April 2009, at
http://www.pakistannews.net/story/492878.
76 ‘Pakistan reviews blasphemy law’, The National, 5 September 2009, http://www.the-
national.ae/apps/pbcs.dll/article?AID=/20090906/FOREIGN/709059901/1002.
77 Zingel (1998) argues that the central collection of zakat was used by the military re-
gime in order to take over control from the religious establishment.
78 In 2003, the NWFP border province made headlines when the MMA-coalition that
won the provincial elections decided to implement its own version of the law on the
enforcement of the sharia. However, this attempt was blocked by the Supreme Court,
which declared the bill to be unconstitutional, see In Re: Reference No. 1 of 2006
2007 SCMR 817.
430 MARTIN LAU

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10 Sharia and national law in
Indonesia

Jan Michiel Otto1

Abstract

This chapter adresses the relationship between sharia and na-

tional law in Indonesia. The historical sections 10.1-10.4 examine
the (pre)colonial pluralities of law, and subsequently relate how
Indonesia has accommodated sharia in its laws, administration,
and court system, from independence in 1945 until today. The sec-
tions 10.5-10.8 pay attention to the law presently in force. While
the constitution does not mention Islam explicitly, the govern-
ment is keen to coordinate religious affairs and prevent excesses.
The Ministry of Religion plays an important role in this respect.
Religious Courts, as branches of the national judiciary, mainly hear
marital disputes, but have recently been given jurisdiction in eco-
nomic matters as well. The Marriage Act of 1974 is the main sha-
ria-based law; in its provisions Indonesia has kept a significant
distance from the patriarchal norms of classical sharia. In 1991,
an official Compilation of Islamic Law, drafted by scholars and
judges, was promulgated. It contains three chapters – on mar-
riage, inheritance, and religious endowments – which, beside the
law, should serve as main reference for the Religious Courts. In
the province of Aceh, with its special autonomy, sharia-based law
also extends to certain criminal offences.
Table of contents
10.1 The period until 1920. Sharia and scholars between
three fires 436
The Dutch East India Company 437
The colonial state and sharia 437
Legislative policies, adat law and sharia in the late colonial
state 440
10.2 The period from 1920 until 1965. The rise of nationalism,
independence, and Sukarno’s rule 441
The end of colonialism and the birth pangs of independence 442
Islamist rebellions, Islamic politics, administration, and law
in the young republic 443
10.3 The period from 1965 until 1985. The heyday of Suharto’s
New Order 445
Political control, bureaucratisation and two major laws 446
The Council of Indonesian Religious Scholars (MUI) 447
10.4 The period from 1985 until the present. The late New
Order, the Reformasi, and recent developments 448
Suharto’s pro-Islam policies and mounting criticism 448
The fall of Suharto, winds of constitutional change, and the
Islamic axis 450
Decentralisation and local sharia-based regulations 451
Dynamics of Islam and politics from Abdurrahman Wahid
to Megawati 452
The presidency of SBY (Susilo Bambang Yudhoyono) 454
10.5 Constitutional law 456
Religious Courts 457
The Ministry of Religion 458
The Compilation of Islamic Law and its legal status 459
Human rights 460
Decentralisation 461
10.6 Family and inheritance law 463
Article 2 and the validity of marriages 463
Interreligious marriages 464
Divorce and repudiation 465
Two procedures 465
Divorce by repudiation (talak) 466
Suing for divorce (gugat cerai) 466
Polygamy 467
Inheritance law 468
Practices and trends in the Religious Courts 470
10.7 Criminal law 473
10.8 Economic law and religious foundations 475
 Islamic banking law 476
Almsgiving law or Islamic taxation 476
Law on religious foundations (wakaf ) 477
10.9 International treaty obligations concerning human rights 477
10.10 Conclusion 479

Notes 484
Bibliography 487
436 JAN MICHIEL OTTO

The Republic of Indonesia (1945) has a population of approximately 235

million people. It is the world’s most populous Muslim country. The
Indonesian archipelago is inhabited by many ethnic groups, the largest being
the Javanese, who occupy the densely populated island of Java along with
other ethnic groups, such as the Sundanese (West Java) and the Madurese
(East Java). Muslims – primarily Sunnis – make up 86 per cent of the
population. Other recognised religions are Protestantism (6%), Roman
Catholicism (3%), Hinduism (2%), and Buddhism (1%). Virtually everyone
in Indonesia speaks the official language, Bahasa Indonesia, although the
many ethnic groups in the archipelago also have their own languages.

(Source: Bartleby 2010)

10.1 The period until 1920

Sharia and scholars between three fires2

Islam reached Indonesia around the thirteenth century through the in-
fluence of traders coming from India (Ricklefs 1981: 3-13). At that time,
the archipelago was made up of various kingdoms, which at times coop-
erated with one another, but at other times went through periods of
great conflict and warfare. Many centuries earlier, Indian traders had
brought Hinduism to Java, which was to affect religion, culture, and the
form of government for a long time (De Graaf 1949: 21). Hinduism in-
fluenced primarily the large states that emerged from central Java,
namely Majapahit in the fourteenth century and Mataram in the fif-
teenth and sixteenth centuries.
These princely states were relatively well-developed with distinct so-
cial, political, and legal institutions (Ball 1981: 1-2). But Islam increased
in its importance, spreading slowly but surely from settlements in the
northern coastal regions of Java to the hinterland. Consequently, the
Islamic religion, including the Islamic jurisprudence of the Shafi’ite
school, blended with the religion, politics, and legal practices in the
princely courts. A certain degree of fusion also took place between
Islamic norms and the local customs and law-ways (adat law)3 in rural
areas (Lev 1972: 5). During the sixteenth century, the sultans of
Yogyakarta and Solo converted to Islam. In their islamised principali-
ties, they began to appoint, alongside a prime minister and a military
commander, a religious scholar (panghulu), who was to be responsible
for religious affairs, including the administration of Islamic justice
(Cammack 2003: 114-115; Hisyam 2001).
SHARIA AND NATIONAL LAW IN INDONESIA 437

The Dutch East India Company

In 1596, Dutch merchant ships arrived in search of spices. Initially, the
Dutch East India Company (VOC), a powerful mercantile corporation,
operated from small trading stations along the coast. For the Europeans
living there, it established a comprehensive legal system based on
Dutch models. With regard to the indigenous population, initially no
colonial legal policy was deliberately pursued. In fact, only in 1747 –
some one hundred and fifty years later – did the Company’s Governor-
General establish by decree the first court for the indigenous population
of Java. The court, based in Semarang, was called the ‘Landraad’. It was
chaired by a colonial administrator, and a few religious scholars (pang-
hulus) were attached to it as advisers (Burns 1999: 61; Hisyam 2001).
The management of the VOC itself was rather uninterested and ignor-
ant about indigenous legal systems (Ball 1981: 17-25). This became clear
when the VOC ordered various compendia of indigenous law to be
drafted. Instead of accurate representations of the complex blending of
adat law, Islamic law, and Javanese royal decrees that applied in prac-
tice, the colonial authorities clung to fallacious, one-sided assumptions;
for example, it was wrongly assumed that the Islamic population was
fully subject to religious, Islamic law only.4

The colonial state and sharia

When the VOC went bankrupt in 1800 and the Netherlands East-Indies
were transferred to the Dutch state, the era of full colonial administra-
tion began. From the outset, colonial policy had consistently placed a
central emphasis on maintaining a budget surplus (batig slot), but after
1800 the Dutch became increasingly concerned with the political and
socio-economic situation in the colony. Influenced by events in Europe
at the beginning of the nineteenth century, the colonial government
also took its legislative duties more seriously.5 A ‘proto-constitution’ was
drafted and brought into force as early as 1803, calling for respect of in-
digenous laws, customs, and institutions (Burns 1999: 62; Ball 1982:
80). Under the leadership of General Daendels (1808-1811) and during
the short interim period of British rule under Raffles (1811-1816), more
territories on Java were brought under colonial rule. A dualist, yet co-
herent, administrative hierarchy was established, made up of Dutch ci-
vil servants on the one hand, and indigenous officials on the other
hand. More courts were established for the indigenous population – still
called Landraad – and presided over by high colonial officials called ‘re-
sident’, who were regional administrators. When a dispute between
Muslims was brought before the Landraad, the panghulu served as an
adviser regarding Islamic laws. However, his opinion was often
438 JAN MICHIEL OTTO

disregarded because panghulus tended to cite primarily religious laws,

regardless of whether or not these were applied in practice (Ball 1981:
69).
From around 1812, resistance against foreign domination started
growing on Java. This resulted in the Java War (1825-1830), which in
the end was won by the Dutch. Now colonial exploitation began in earn-
est (Ricklefs 1981: 111). The government implemented a repressive colo-
nial agricultural policy that obliged Javanese farmers to use a set portion
of their lands for the cultivation of crops for the colonial government,
the so-called Cultivation System (Cultuurstelsel). Through this system
the Dutch generated enormous wealth. Despite specific regulations call-
ing for recognition of indigenous legal systems and the protection of lo-
cal communities against abuses, colonial law served generally as an in-
strument for the government’s extractive policy.
During this period, no satisfactory overall policy was made for the co-
lonial administration of justice. As a consequence, also the position of
the sharia remained unclear and ambiguous. The general ignorance of
the Dutch East-Indies government with regard to adat and Islamic laws
continued (Ball 1981: 35). Furthermore, according to a royal decree from
1830, the codified legislation of the Netherlands had to be applied in
the Netherlands Indies to the extent possible (De Smidt 1990: 17-18).
Thus, on 1 May 1848, ten major laws were brought into force in the col-
ony, modelled after the innovative codifications of 1838 in the
Netherlands. An ‘Act on General Provisions of Legislation’ divided the
population into two groups: first, the Europeans and those with equal
legal status; and, secondly, the natives and those with equal legal status
(Art. 6). At first, all Christians were considered equal to the Europeans.
The second category of natives and those with equal status included
‘the Arabs, the Moors, the Chinese’ as well as all others who were
‘Mohammedans or Heathens’. While the codified civil and commercial
legislation applied in principle to the Europeans, the native population
was subject to ‘the religious laws, social institutions and customs, inso-
far as these do not conflict with the generally recognised principles of
fairness and justice’ (Dekker & Van Katwijk 1993: 11-13). In 1854, the
Netherlands Indies ‘constitution’ (Regeringsreglement) was promulgated;
it further substantiated these provisions in Article 75(3).
The principle of legal dualism was by no means absolute. Indeed in
public law there was a strong tendency towards unification. In 1867 a
criminal code for Europeans was enacted, followed in 1873 by one for
non-Europeans. Yet, the substance of both codes was identical, and as
of 1918 all population groups would become subject to one unified
criminal code. In 1879 labour law was also unified. But, in most mat-
ters of private law, legal dualism continued to prevail. When putting
this system into practice, the colonial rulers were faced with the
SHARIA AND NATIONAL LAW IN INDONESIA 439

question of what these religious laws, social institutions, and customs

actually came down to, and which agencies should be tasked with apply-
ing them. In the Dutch institutes where indigenous law was studied
and taught to future colonial officials, the focus lay in discovering and
finding ‘Muhammadan law’ (Otto et al. 1994: 732). Salomon Keijzer, a
scholar of Islamic studies who lectured at the Royal Academy for colo-
nial civil servants in Delft, argued that pure Islamic law should serve as
the main reference in any attempt to understand the laws of the indi-
genous population. A colleague of his, the jurist L.W.C. van den Berg,
described the indigenous laws on Java and Madura as ‘deviations’ from
Islamic law.6
In 1882, the colonial government decided to formalise and regulate
the existing administration of Islamic justice, and, as such, enacted an
ordinance on the procedural law of Religious Councils, popularly
known as the ‘Council Agama’.7 Thus, the colonial government put to-
gether non-salaried religious officials, led by a panghulu, in these coun-
cils and granted them jurisdiction over marriage, divorce, and inheri-
tance, as well as over religious endowments (wakaf) (Noer 1978: 43).
The council applied Islamic law. The religious scholars and other mem-
bers of the council were now no longer appointed by the native ruler in
their districts, but by the Dutch resident. The decisions of the Religious
Council could only be executed following approval by the Landraad,
which continued to be the main state court for the native population.
Such ratification was in many, if not most, cases withheld, effectively re-
legating the status of the Religious Council to little more than an advi-
sory body (Hooker 2003: 13). Despite the council’s formal jurisdiction
to decide on marital issues according to Islamic law, colonial legislators
enacted the Mixed Marriages Ordinance of 1898, which decreed that
Muslim women were allowed to marry non-Muslims. This measure,
which conflicted directly with the prevailing interpretations of the sha-
ria, was to remain in force until 1974.
The panghulus saw themselves placed ‘between three fires’: God, the
colonial government, and local communities (Hisyam 2001). In prac-
tice, they cast themselves as mediators between the latter two groups,
the government being keen to use their services. Some new Muslim
movements, however, depicted the Religious Councils as corrupt and
‘lackeys of the non-believers’. In addition, doubts were increasingly
placed on their alleged expertise, by both the nascent Muslim move-
ments and the colonial government itself, which had imposed certain
standards precisely for this purpose. At the same time, other informal
religious scholars began to gain prominence. Under the auspices of the
Sultan of Yogyakarta, from 1905 some panghulus established their own
Islamic schools (madrasahs) employing modern methods to educate
staff for the Religious Councils. Eventually, madrasahs supported by
440 JAN MICHIEL OTTO

new Muslim associations (see below) would spread across the island of
Java.

Legislative policies, adat law and sharia in the late colonial state
Around 1900, various colonial administrators and scholars proposed
the replacement of the existing legal dualism with a system of uniform
private law codes based on the Dutch model for all inhabitants. They
were of the opinion that the religious and customary laws were a source
of legal uncertainty and that the corpus of different laws for different
population groups created confusion (Ball 1981: 43). Others, however,
believed that it would be wrong to apply the laws of the Dutch minority
to the native majority, as it had its own laws. After a long political and
academic struggle, the latter succeeded in convincing the Dutch parlia-
ment and government to stick to the pluralistic system and retain the
indigenous law of the natives, rejecting proposals for the full unification
of private laws. Around the turn of the century, adat law – Indonesia’s
version of customary law – became the key concept in the colonial ana-
lysis of indigenous laws. The first person to use the concept of ‘adat-
law’ – in 1893 – was Snouck Hurgronje, an expert of Islam, Arabic and
Indonesian languages and cultures.8 Jurists, and one legal scholar in
particular, the young law professor Cornelis van Vollenhoven who
taught in Leiden (1901-1933), further developed this concept. To him
and his many students and supporters, the recognition of adat law was
the main objective of the so-called Ethical Policy initiative (1901). He ar-
gued in favour of extended indigenous land rights of native commu-
nities and protection from land grabbing by European and Chinese en-
trepreneurs. Much of the political and legal debates and literature on
adat law deals with these issues of land tenure security.
However, in the context of Islamic legal development, the promotion
of adat law could also be regarded as a deliberate effort to undermine
Islamic law. Indeed, when Snouck Hurgronje coined the term, he hap-
pened to be involved in preparing a government strategy to address the
rebellious, fervently Islamic, province of Aceh. In his opinion, the trans-
formation of Islam and Islamic law into political factors had to be sty-
mied, not only in Aceh, but throughout the colony. However, while it is
true that in his view political Islam had to be resisted, he also argued
that Islamic law should not be prevented from playing a role in regulat-
ing the private relations of Muslims. After 1900, Snouck Hurgronje
worked in close collaboration with Van Vollenhoven who, assisted by
dozens of field researchers and PhD students, scientifically developed,
elaborated, recorded, and promoted the colony’s customary law. As said,
adat law was most important in the ‘ethical’ struggle for land tenure se-
curity, fitting in a new policy emphasis on the welfare and well-being of
SHARIA AND NATIONAL LAW IN INDONESIA 441

the indigenous population. Its key characteristic was that its norms
were actually applied by local communities; thus, adat law was living
law. As a consequence, it was reasoned that adat law would include only
those norms of ‘customary law’, of ‘princely decrees’, and of ‘religious
law’ that were actively practiced by the community.
The principle that sharia norms were considered the law in force only
in as far they applied in practice – thus belonging to the living adat law
– became known among legal scholars in Indonesia as the ‘reception
theory’.9 This theory, however, was considered by orthodox and nation-
alist Muslims as a symbol of the subjugation of Islamic law to adat law.
They accused the Dutch of engaging in divide-and-rule politics and of
misusing the fact that adat laws differed from one place to another.
Moreover, the repressive ‘pacification’ of Aceh reinforced both national-
ist and Muslim resistance. As a consequence of these sentiments, var-
ious large Islamic popular movements were founded. In 1911, the
‘Muhammadiyah’ was established. In 1912, the Islam Association
(Sarekat Islam) followed, which would later be surpassed in importance
by the NU established in 1926 (Nahdatul Ulama, lit. ‘the awakening of
the scholars’). The NU had its roots in the Islamic schools that taught
sharia (Van Dijk 1988: 37-38). In 1923, an organisation of ‘orthodox’
Islamic intellectuals called ‘Persis’ (Persatuan Islam, lit. Islamic
Unification) was created (Hooker 2003: 28-32).10 All sorts of differences
of opinion existed between these new movements and the panghulus,
but there was also a common goal: furthering the cause of Islam vis-à-
vis the colonial government (Hisyam 2001).

10.2 The period from 1920 until 1965

The rise of nationalism, independence, and Sukarno’s rule

In 1922, the colonial government established a commission for the re-

organisation of the Religious Council. In addition to Muslim leaders
and Javanese local rulers (bupati or regent), this commission included
Hussein Djajadiningrat, the government’s Deputy-Advisor for Native
Affairs, and the professor of adat law Ter Haar (Lev 1972: 18). The work
of this commission eventually contributed to the drafting and enact-
ment of a regulation that came into force in 1937. This regulation chan-
ged the status, name, and composition of the councils on Java and
Madura. It established ‘Panghulu courts’, to be comprised of a religious
scholar (panghulu) serving in the capacity of judge, who could be
assisted by two assessors and a clerk. These would all be salaried
positions in an effort to professionalise the courts. In addition, an
Islamic Court of Appeals (Mahkamah Islam Tinggi) was established for
the whole of Java and Madura. Under the same regulation, South
442 JAN MICHIEL OTTO

Kalimantan was provided with an equivalent court structure.11 The new

Religious Courts retained their authority to settle marital disputes.
However, adjudication of religious endowments (wakaf)12 and of inheri-
tance law was removed from their jurisdiction. The regulation granted
the secular General Courts (Landraden) full authority in matters relating
to property. Understandably, the 1937 reform was seen as being anti-
Islamic and sparked much resistance from Muslim movements, but to
no avail (Cammack 2007: 148; Lev 1972: 19-24).

The end of colonialism and the birth pangs of independence

In 1942, Japan invaded the Netherlands Indies and took over the ad-
ministration of the archipelago. All existing laws remained in force;
therefore, the position of Islamic law remained largely unchanged. The
Japanese did, however, concentrate the supervision of religious affairs
into a single department of Religious Affairs instead of spread across
various ministries as it had been previously (Lev 1972: 44).
From the end of 1944, when independence was in sight, a secret
council of prominent Indonesians began meeting in order to advise the
Japanese on administrative affairs. The agenda of these discussions in-
cluded the position of Islam (ibid: 34-36). The visions of ‘nationalists’
and ‘Muslim leaders’ soon diverged on this issue, resulting in the coun-
cil becoming deeply divided regarding the question of whether a future
independent state of Indonesia should still have Religious Courts. A
number of Muslim leaders hoped for an ‘Islamic state’ that would en-
force the sharia for all Muslims. During negotiations in June 1945, their
wishes were initially honoured in the so-called Jakarta Charter, which
was intended as the preamble to the new constitution. This document
stipulated that the new state would be based on the belief in God ‘with
the obligation to implement sharia for the adherents of Islam’ (Cribb &
Brown 1997: 15).
But in the following weeks, nationalist leaders Sukarno and Hatta
changed their minds. When they pronounced Indonesia’s indepen-
dence on 17 August 1945 and read out and disseminated the first consti-
tution, the cited words (‘with the obligation to…’) appeared to have been
deleted. Sukarno and Hatta preferred a national state under a strong,
unified leadership and with a secular, modernising orientation.
The ideological foundations of the Indonesian Constitution of 1945
lay in the five principles of the Pancasila. The Pancasila, which literally
means ‘five pillars’, became part of the constitutional preamble. As
such, it formed part of the highest source of law in the Indonesian
state. The five principles were:
– belief in the One and Almighty God;
– just and civilised humanity;
SHARIA AND NATIONAL LAW IN INDONESIA 443

– national unity;
– popular sovereignty governed by wise policies arrived at through de-
liberation and representation; and
– social justice.

This political formula incorporated the main ideological currents in

Indonesia’s political arena: Islam, internationally recognised principles
of humanity, nationalism, traditional governance, democracy, and social-
ism. The general formulation of the first principle was meant to as-
suage the fears of the followers of other religions. Formally, no space
was left for atheism or polytheism, but, culturally, religion in Indonesia
was syncretic and tolerant.

Islamist rebellions, Islamic politics, administration, and law in the young

republic
After independence, the Religious Courts remained in place, in accor-
dance with the constitution’s transitional provision that all laws and
state institutions would remain unchanged as long as they did not con-
flict with the new constitution. The first twenty years of the young
Indonesian republic, led by Sukarno from 1945 until the beginning of
the New Order in 1965/1966, constituted a period of much military, po-
litical, and ideological tension and conflict. The struggle for indepen-
dence undertaken against the Dutch lasted until December 1949.
During this chaotic period, a number of insurrections against the re-
public occurred in various regions. In 1948, a mystic leader in West
Java proclaimed himself to be the leader of an Islamic state based on
the sharia and ruled by clergymen (Ricklefs 1981: 215-216). This Darul
Islam insurgence sparked years of conflict with the government in the
rural areas of West Java.
Starting in 1950, a rebellion against Jakarta also broke out in South
Sulawesi, which aligned itself politically with Darul Islam. In 1953, Aceh
joined in the insurgency (ibid: 232, 235). In 1956, army officers also re-
belled in Sumatra and in 1957 in Kalimantan, the Moluccas, and North
and South Sulawesi (ibid: 242). After a failed assassination attempt on
Sukarno by Muslim extremists later that year, he began opting for a
more dictatorial form of rule. The army supported him in this, as did
his own nationalist party, ‘Partai Nasional Indonesia’ (PNI), and the
communist party, ‘Partai Komunis Indonesia’ (PKI). Starting in 1957,
he referred to his reign as ‘Guided Democracy’. Relations with Aceh
were restored in 1959 by giving the province a special legal status that
granted it autonomy in matters of education, culture, and religion.13 In
West Java, the Darul Islam rebels were pushed back, but were not to
fully give up their fight until 1965 (Van Dijk 1988: 40).
444 JAN MICHIEL OTTO

After independence, the Islamic mass organisation Masyumi, which

had been founded during the Japanese occupation, had become the big-
gest political party. Initially, the NU, the Muhammadiyah, and other
Muslim organisations worked together under the banner of Masyumi.
Several prime ministers belonged to this coalition (Ricklefs 1981: 230).
Following an internal conflict, however, between the ‘pliable’ conserva-
tives and the ‘strict’ modernists, the conservative NU left the Masyumi
during the 1950s and started working together with the nationalists and
communists.
In 1955, general elections were held for parliament and for the
Konstituante, the Constitutional Assembly of Indonesia. Masyumi, PNI,
NU, and PKI became the biggest parties. In the Konstituante, which was
inaugurated in 1956, Muslim politicians argued that the Jakarta Charter
should be incorporated into the constitution, but this proposal was re-
jected by a small majority (ibid: 253). Sukarno, who adamantly contin-
ued his push for national unity, now tried to sway popular opinion in
favour of the ‘Nasakom’ ideology, trying to unify three competing ideol-
ogies (Nasionalisme, Agama (religion), and Komunisme (ibid: 256). At
this juncture, the communists were becoming more and more power-
ful, as the Muslim parties steadily lost ground.
On the administrative front, successive cabinets attempted to orga-
nise and regulate government and society following independence in
1945. A year later, in 1946, the Ministry of Religion was established
(Lev 1972: 43). This new ministry opened local bureaus for religious af-
fairs throughout the country, the so-called KUA (Kantor Urusan Agama).
Oversight of the Religious Courts was also transferred in 1946 from
the Ministry of Justice to the Ministry of Religion (ibid: 64). The minis-
try offered ample employment opportunities for supporters of the NU,
and of the Masyumi, who, unlike other civil servants, mostly had their
origins from pious, non-aristocratic circles (ibid: 53). Enactment of Law
22/1946 brought the contracting and registration of Muslim marriages
and divorces within the administrative jurisdiction of the ministry (ibid:
54-57). The office of the salaried Civil Registrar, whose functioning fol-
lowed national, uniform procedures overseen by the local bureaus for
religious affairs, was also created. While the Ministry of Religion was
viewed with hope by Muslim activists, it was seen with fear by others.
Would it propagate Islam and undermine the state or would it control
Islam on behalf of the state?
After the declaration of independence, nationalists made several at-
tempts at abolishing the Religious Courts. The first was Act 19/1948,
stipulating that the courts must be integrated into secular state courts.
However, due to the ongoing struggle for independence against the
Dutch, this law was not implemented and the Religious Courts simply
continued to function as they always had, just now formally supported
SHARIA AND NATIONAL LAW IN INDONESIA 445

by the Ministry of Religion. Finally, in 1957, the cabinet enacted

Government Regulation 45, authorising the formation of Islamic courts
in every district in the outer islands where they did not already exist
(Cammack 2007: 149). While the jurisdiction of these Religious Courts
outside of Java appeared to be broader, as it included inheritance mat-
ters (ibid), in fact, it was more limited because its scope was decreed to
be for ‘the application of the laws living in society’. In essence,
Regulation 45/1957 was a continuation of adat law policies, but now for
the purpose of formation of a ‘national adat’ (Bowen 2003: 53).
The Supreme Court in Jakarta, led by the progressive Wirjono, was of
the opinion that the position of widows under traditional adat law and
Islamic law was too weak. Lev notes the court’s argumentation, includ-
ing reference to ‘the equal participation of women in the national strug-
gles’ and ‘the strong relationship between husband and wife’ (1962:
213-222). In 1960, the Supreme Court ruled that ‘adat inheritance law
throughout Indonesia concerning the widow can be so formulated that
a widow is always an heir to the separately owned property […] of her
husband.’ Lev further notes, ‘[t]he essential point of this decision […] is
that the Supreme Court’s view of justice has prevailed over the several
adat views of justice […]’ (ibid: 222). This new nationalist legal discourse
with regard to the position of sharia vis-à-vis adat law in Indonesia’s na-
tional legal system came to expression in the plea of the eminent
Muslim jurist Hazairin for the creation of a fifth Sunni school of
Islamic jurisprudence, the Madhhab Indonesia. This would be based on
an eclectic amalgamation of elements taken from the teachings of the
four existing schools of jurisprudence complemented with Indonesian
local adat practices, e.g. joint marital property (harta bersama).

10.3 The period from 1965 until 1985

The heyday of Suharto’s New Order

On 30 September 1965 the army allegedly foiled an attempted leftist

coup. This sparked off an immense power struggle, which eventually
devolved into a huge massacre in which the army – backed by Muslim
groups – imprisoned and murdered hundreds of thousands of commu-
nists and communist sympathisers. Sukarno lost his authority and on
11 March 1966 he signed a document in which he transferred executive
powers to Suharto, who, in turn, ordered the Communist Party to be
abolished. The following year, Sukarno was officially deposed and
Suharto proclaimed himself president of the republic (Cribb & Brown
1997: 110-111). His rule, generally referred to as the ‘New Order’ (Orde
Baru), was to last for 32 years.
446 JAN MICHIEL OTTO

Political control, bureaucratisation and two major laws

Under Suharto’s rule only three political parties were allowed, all of
which were controlled by the government. Golkar, a secular mass orga-
nisation initiated by the army in 1964 to unite all forces against the
communist party, became the dominant ruling party. All civil servants
were pressured to become members of Golkar. Existing Islamic parties
were ordered to merge, thus becoming the United Development Party,
or PPP (Partai Persatuan Pembangunan). The PPP together with the na-
tionalist Democratic Party of Indonesia, or PDI (Partai Demokrasi
Indonesia – the third and final political party permitted to operate un-
der Suharto’s regime – engaged in a very restrained form of opposition
politics. With the help of his generals, Suharto created a stable, but re-
pressive police state that aimed for quick economic growth. Indonesia’s
natural resources – oil, gas, and wood – were exploited at rapid rates.
Suharto also set about to improve relations with the West and the inter-
national community.14
Suharto’s politics of stability, control, bureaucratisation, and forced
‘Pancasila-harmony’ also affected Islam in Indonesia, which was initi-
ally allocated a secure, but limited role. The Ministry of Religion exer-
cised political and administrative oversight of Islamic organisations,
Islamic education, and the administration of Islamic justice. In the
1970s, the government made two major new laws to further define the
position of the sharia, namely the Basic Act 14/1970 on the Judiciary
and the Marriage Act 1/1974.
The Judiciary Act of 1970 specified that the national judiciary would
be comprised of four sectors: general, administrative, military, and reli-
gious. In this context the word ‘religious’ (agama) in effect only referred
to Islam.15 Courts in all four sectors would be state courts, with both
courts of first instance and appellate courts. The new law signalled the
unification, strengthening and expansion of the state-led Islamic judi-
cial sector (previously regulated in 1882, 1937, and 1957). The Religious
Courts still required, however, approval from the General Courts for ex-
ecution of their judicial decisions. Moreover, the new law of 1970 set
forth that judgments of the Religious Courts were subject to review by
the Supreme Court. Thus, the expansion notwithstanding, the subjuga-
tion of Islamic law was once again formally established. Initially, the
Ministry of Religion resisted the Supreme Court’s newfound authority
over the Islamic courts and tried to keep the courts ‘insulated from the
pressures to conform to the imperatives of a national legal system’
(Cammack 2007: 156). But, in 1979 when the Supreme Court actually
exercised its jurisdiction over two cases originating in the Religious
Courts, this was by and large accepted by the Ministry.
SHARIA AND NATIONAL LAW IN INDONESIA 447

Before the 1974 Marriage Act was promulgated, various drafts had
been discussed, none of which were ever approved. In particular,
Islamic modernists and orthodox groups disagreed about draft provi-
sions on polygamy and divorce. The orthodox preferred to leave every-
thing to the uncodified sharia, but in 1973 modernists succeeded in
pressuring the government to propose a bill that would strengthen the
position of women in many respects and expand state supervision.
Orthodox groups rose up in sharp opposition to these proposals, and
massive, heated demonstrations were held around the parliamentary
premises. After physical and political intervention of the army, the par-
liament reached a compromise, replacing a number of the proposals by
less far-reaching reforms (Butt 1999: 122-123). Some of the new provi-
sions about divorce were, however, so ambiguously worded that after an
initial reading, one was still left unsure as to whether they entailed a
modernist or a conservative solution. In any case, the government was
now able to proudly declare that a unified marriage law covered all of
Indonesia, and that the colonial Mixed Marriage Ordinance of 1898 had
been abolished.
Generally speaking, the Religious Courts put themselves to their
tasks of reviewing applications for divorce and polygamy. While cases of
polygamy were rather exceptional, unilateral repudiation was common,
although the statistics fluctuated significantly per region (Otto & Pompe
1988). However, because the new act was still weak in defining norms
in several areas (e.g. the validity of unregistered marriages, grounds for
polygamy and divorce, and guidelines on interreligious marriages) it
did not end legal uncertainty.16
In the meantime, the government actively prosecuted groups of
Muslim radicals that remained active after the disbandment of the Darul
Islam. Ba’asyir, who would later gain notoriety as the alleged mentor of
the perpetrators of the Bali bombings in 2002, was arrested in 1970 for
his activities in the underground Komando Jihad. The prime objective of
this organisation was the creation of an Islamic state. It was notorious
for its bombing attacks on cinemas, nightclubs, and churches, in resis-
tance to the regime of Suharto.

The Council of Indonesian Religious Scholars (MUI)

During the 1970s there was little trust between the government and the
conservative religious leaders. In reaction to this, in 1975, Suharto, in
his usual, crafty manner, attended to the creation of a national Council
of Indonesian Religious Scholars, the Majelis Ulama Indonesia (MUI).
First, twenty-six provincial councils were formed, which, in turn, insti-
tuted a national council. The status of the MUI was unclear: was it a
private or a semi-state institution? One of the responsibilities of the
448 JAN MICHIEL OTTO

MUI was to assess the religious quality of laws (Bowen 2003: 229-231).
The council also proclaimed unsolicited legal opinions (fatwas) that
could be very controversial at times. In 1980, for example, the MUI de-
clared itself against all marriages between Muslims and Christians,
and, in 1981, it declared the attendance of Muslims at Christian celebra-
tions to be sinful (ibid: 235). In the 1980s, the MUI was involved in the
establishment of an Islamic banking sector. Some of its members also
participated in drafting the ‘Compilation of Islamic Law’, an attempt to
have religious scholars and jurists decide on a restatement of the sharia
in force in Indonesia (see section below).
Through these measures Suharto provided a place for Islam during
the New Order. The focus lay on control; what could be seen as islami-
sation of national law often came down to nationalisation of Islamic
law. Because of the infamous Ormas legislation (1985), Islamic organisa-
tions, like others, were legally obliged to recognise the Pancasila state
ideology as their highest norm and sole foundation. Any source of ser-
ious opposition against Suharto’s rule, Islamic or otherwise, was
harshly suppressed.

10.4 The period from 1985 until the present

The late New Order, the Reformasi, and recent developments

Suharto’s pro-Islam policies and mounting criticism

Once major Muslim leaders had openly accepted the supremacy of the
Pancasila, the proverbial hatchet between state and Islam could officially
be buried. Rather than promoting political Islam, these leaders now
turned their attention to ‘cultural Islam’ (Salim & Azra 2003b: 10).
This, in turn, stimulated Suharto to embrace a pro-Islam policy.
Incidentally, this came at a politically opportune moment, as Suharto
had faced mounting criticism since the 1980s, and was, therefore, in
crucial need of support from Muslim movements, notably in the elec-
tions of 1992 and 1993 (Hefner 2003: 155).
Criticism of Suharto’s regime came from various corners. For years,
the continuing violation of human rights by his regime had been openly
condemned from abroad. In Indonesia, most people and organisations
were more hesitant at voicing such criticism, partially out of fear, and
partially because the achievements of Suharto for the country’s stability
and economy were still appreciated. When, however, the corruption of
Suharto’s family and inner circle rose to unprecedented heights, the
support his regime enjoyed on the street level started to evaporate.
In the 1990s the regime’s pro-Islam politics led Suharto’s protégé
Habibie, the Minister of Technology and Research, to form ICMI, a
SHARIA AND NATIONAL LAW IN INDONESIA 449

national association of Muslim intellectuals (Ikatan Cendekiawan

Muslim Indonesia). The ICMI brought together pious Muslim intellec-
tuals, giving them a useful political instrument (Schwarz 1999: 179).
The association had its own think tank and a newspaper to better disse-
minate its ideas. The goals of ICMI were the improvement of the eco-
nomic position of Muslims and the incorporation of Islamic values into
official government policy (ibid: 175-176).
During the 1990s Islam also manifested itself increasingly in other
areas. Islamic schools educated a new generation of students, trying to
instil in them devotion, discipline, diligence, and moral ideals, all in the
name of Islam. Within the bureaucracy Muslim civil servants were now
permitted to openly present themselves as devout Muslims. Meetings
were opened with an Islamic prayer, and speeches were preceded by
Arabic prayer blessings. Suharto also became aware of this change of
winds and he himself made the pilgrimage to Mecca in 1991. Both he
and Habibie, who became vice president, increasingly emphasised the
Islamic character of the New Order. Nonetheless, the Pancasila state
ideology remained the fundamental guideline for Indonesia’s govern-
ance, including in matters pertaining to religion. National religious har-
mony continued to be imposed and enforced from above, a kind of ‘to-
talitarian tolerance’ so to speak.
Meanwhile, in 1989 a new legislative centrepiece, Act 7/1989 on
Religious Courts had been enacted. This law further regulated the posi-
tion and functioning of the Religious Courts. Earlier drafts had sparked
heated debates (Bowen 2003: 185-189). Many nationalists, members of
the Christian minority, and professional jurists were strongly opposed
to the law because they viewed it as an implicit acknowledgment and ac-
ceptance of an autonomous sharia sector within the national legal sys-
tem. In contrast, the government and the army rather saw the law as a
means through which to increase the state’s influence over Islam.

For the content of the applicable law, the Religious Courts had to rely
on the aforementioned Compilation of Islamic Law, which had already
been completed in 1988, at a time when the debates about the
Religious Courts’ bill were still raging. The Compilation was drafted by
many commissions made up of religious scholars, jurists, and other ex-
perts. In this way, the Indonesian government had ensured national
unification and codification of major parts of the Islamic jurisprudence
(fiqh), with the endorsement of both leading religious scholars and pro-
minent judges. In 1991, Suharto issued a presidential instruction order-
ing his Minister of Religion to disseminate the Compilation to be used
by state institutions ‘[…] as a reference to the greatest possible extent in
resolving the issues it covers […]’ (Nurlaelawati 2010: 89). The minister
then instructed all relevant state agencies to ‘apply as much as possible
450 JAN MICHIEL OTTO

the mentioned Compilation to complement the other legal regulations’.

Nowadays the Compilation’s rules are taught in schools and applied in
Religious Courts. However, from studies of court decisions and inter-
views with judges, it appears that some judges still use fiqh-sources be-
yond the Compilation, as they want to be able to choose from a broad
range of sources in order to arrive at just decisions that are also consid-
ered socially and religiously acceptable (ibid).
The Islamic revival taking hold in society in the late 1980s and 1990s
also increased the demand for Islamic banking. Thus, in 1991, Suharto,
who had hitherto been fearful of Muslim groups attaining financial
power, agreed to the establishment of an Islamic bank. The founding of
Bank Muamalat Indonesia (BMI) was intended both to strengthen the
economic position of non-Chinese Indonesians as well as to serve as an
example of corporate governance and honest banking.17

The fall of Suharto, winds of constitutional change, and the Islamic axis
When in 1997 the Asian Financial Crisis struck Indonesia, resistance
against Suharto became massive and unstoppable. Students played a key
role in these protests, demanding large-scale political reforms under the
banner of Reformasi. Leading the resistance against Suharto were,
among others, the NU leader and religious scholar Abdurrahman
Wahid, a democratic-minded nationalist, and the more radical academic
Amien Rais, leader of the Muhammadiyah movement. They dared to
voice harsh criticism of the old president.18 After large and protracted
demonstrations, Suharto resigned in 1998. The Reformasi could then
begin: democratisation, social justice, liberalisation, decentralisation,
and possibly a chance for Islamic activists to wrest themselves free from
the legacy of colonial and postcolonial state control.
Suharto was succeeded by Habibie, who swiftly pronounced a num-
ber of laws that regulated the upcoming processes of democratisation
and islamisation. Law 22/1999 on regional autonomy, for instance,
brought about a major political transformation of central-local relations.
In addition, Habibie promulgated legislation concerning organisation of
the pilgrimage (hajj), management of required almsgiving (zakat), and
Islamic banking (Salim 2003: 228). It must be noted that these laws did
not oblige Indonesians to undertake the hajj, pay zakat taxes, or open
an Islamic bank account. They were procedural laws establishing an of-
ficial legal framework for those Muslims who wanted to adhere to their
religious duties in these fields (ibid: 229).

Habibie called parliamentary elections in the summer of 1999.

Abdurrahman Wahid’s PKB and Rais’s PAN emerged as new Islamic
parties. Together with the traditionally law-abiding PPP and a number
SHARIA AND NATIONAL LAW IN INDONESIA 451

of smaller Islamic parties, they formed the so-called ‘Islamic axis’ in

Indonesia’s newly elected parliament. Of the axis parties only the PPP
and one of the smaller parties strove for the revival of the Jakarta
Charter and the islamisation of the constitution. The big winner of the
1999 elections was, however, a secular party: the Partai Demokrasi
Indonesia (PDI-P) led by Sukarno’s daughter Megawati. Nonetheless,
not she, but PKB leader Wahid became president as a result of the poli-
tical manoeuvring of the Islamic axis led by Amien Rais. Megawati was
chosen as vice president; Rais became speaker of the parliament.
President Wahid further restricted the role of the army in politics
and initiated several major constitutional changes, strengthening hu-
man rights and the free press, empowering elected representative
bodies, and safeguarding the independence of the judiciary. He also
strongly opposed an Islamic state and the introduction of sharia, as he
was of the opinion that religion and politics must remain separated
(Bowen 2003: 240). Attempts to further islamise politics and laws did
not, therefore, stand much of a chance under Wahid, despite his
Islamic background and support base as the NU leader. A majority in
parliament shared his viewpoints on these issues.19 In 2000, several
Islamic parties supported a bill on interreligious harmony. This draft
proposed to outlaw mixed marriages and to set stricter conditions on
the building of new churches in terms of a minimum number of adher-
ents and the permission of inhabitants in the neighbourhood. In re-
sponse to such developments, and especially when their churches were
occasionally set on fire, Christians rose in protest (ibid: 239, 247). In
the end, the bill was rejected.
Wahid felt so confident that he occasionally took stands diametrically
opposed to those held by prominent ulama and the MUI. In the high-
profile Ajinomoto case in 2002 the MUI had ordered tests of flavouring
agents produced by the Ajinomoto company, and it was concluded that
one product contained substances from the pancreas gland of pigs and
was therefore considered forbidden (haram). President Wahid, drawing
on other lab test results, decided that the substance was permissible
(halal), and went on to declare that both the MUI and he were correct,
and that the matter was a case of free interpretation (ijtihad). To the
public it was no longer clear who held ultimate authority on religious
matters in the country and who could make binding decisions in cases
such as these (ibid: 233-234).

Decentralisation and local sharia-based regulations

Wahid had carried through with the decentralisation process started by
Habibie in 1999, which strongly expanded the autonomy of the dis-
tricts. For two provinces, Papua and Aceh, special autonomy laws were
452 JAN MICHIEL OTTO

enacted that granted the provinces more authority in making their own
provincial regulations. In Papua, these regulations referred to adat laws,
while in Aceh, according to Act 18/2001 on Aceh, priority was paid to
the sharia.
Act 18/2001 would form the legal basis for the provincial government
of Aceh to issue a number of regional regulations called ‘qanun’ (Arabic
for law) on several contested issues. The central motive of the national
government concerning Aceh is revealed by Ichwan (2007: 194-196)
who demonstrates that both Abdurrahman Wahid and Megawati as pre-
sidents had instructed their minister of Religion ‘to promote the initia-
tive for creating security through a religious approach’. This played into
the hands of the provincial branch of the MUI in Aceh, re-established
in 2001 as MPU (ibid: 204), which had already played an active islamis-
ing role by issuing several fatwas. In particular, its fatwa ordering wo-
men to wear veils resulted in much uneasiness. But the government
did not immediately take a stand on this thorny issue. As Bowen (2003:
231-233) noted, however, it became difficult to ignore the fatwa, particu-
larly since in 2002 and 2003 the province’s Sharia Office and the pro-
vincial parliament laid down Aceh’s new sharia policy in a number of
qanuns (Ichwan 2007: 205) (see 10.5).
Elsewhere in Indonesia, several districts enacted sharia-based regula-
tions (Perda Syariah). Yet, in most areas, as a result of the 1999 decen-
tralisation, it was not so much Islam that was undergoing a revival, but
rather adat. Locally, rules of adat law dealt with issues of political
authority and of land and natural resources. In the strongly Islamic pro-
vince of Minangkabau, for example, the return of the adat was of a
stronger political consequence than the return to Islamic beliefs. In
other areas of the archipelago, the resurgence of traditional loyalties led
to conflict. Consequently, ethnic and sectarian violence broke out in
places such as Central Sulawesi and the Moluccas, where bloody fights
between Muslims and Christians ensued.

Dynamics of Islam and politics from Abdurrahman Wahid to Megawati

Meanwhile, Wahid had come into conflict with parliament because of
his increasing capriciousness and his rude and disdainful behaviour to-
wards political opponents. Following accusations of mismanagement
and involvement in corruption scandals, parliament pressured him into
resignation for his ‘grave’ failure to abide to the ‘main guidelines of
state policy’. Megawati succeeded him as president in July 2001, with
the leader of the Islamic PPP, Hamzah Haz, becoming her vice
president.
Following the attacks of 11 September 2001 and the ensuing
American attack on Afghanistan, the Indonesian government strongly
SHARIA AND NATIONAL LAW IN INDONESIA 453

endeavoured to prevent these foreign geopolitical developments from

having negative repercussions on interreligious harmony at home. In
October 2002, Indonesia itself was hit by a major terrorist attack target-
ing a nightclub on Bali, as a result of which many Australians and
Indonesians died. In 2003, an attack on the Marriott Hotel in Jakarta
followed, and the year after the Australian Embassy became the target
of Islamic terrorism. Subsequent investigations focussed on local
groups, national organisations, and branches of international Muslim
terrorist networks.20 A number of individuals were condemned to
death, but the involvement of Ba’asyir, the alleged leader of the Jamaah
Islamiyah, could not be irrefutably established.
During Megawati’s presidency, which strongly relied upon a number
of ‘superministers’, able technocrats, and military figures, including
president-to-be Susilo Bambang Yudhoyono, various developments sur-
faced signalling the continuing islamisation of society. With the ap-
pointment of a vice president like Hamzah Haz, for example, who him-
self had three wives, the official state policy of rejecting polygamy,
which had been adhered to for years, became a dead letter. Polygamy
now occurred openly and trouble-free. In order to circumvent the re-
strictive provisions of the Marriage Act of 1974, men chose to have their
polygamous marriages contracted solely by an imam. Earlier studies re-
vealed that of all divorces about half took place without the involvement
of the Religious Courts or prescribed law (Cammack et al. 2007: 120;
Debating 2003; see also 10.6).21 Thus, under Megawati, the govern-
ment’s control and supervision of religion seemed to lose some of its
strength.
In addition, a fierce argument arose on the new draft criminal code
when word spread that a new definition of adultery (i.e. all extramarital
sexual relations) was adopted directly from fiqh sources. Minister of
Justice, Yusril Mahendra of the small Islamist party PBB, was suppo-
sedly employing this tactic in order to win the support of the Muslim
voters. However, it was the new fundamentalist Muslim party PKS,
which was established in 1998, that grew very swiftly thanks to a young,
well-educated and highly disciplined cadre of volunteers, engaging in
social work in villages and urban kampongs. The party, based on the
ideology of Hassan al-Banna (founder of the Egyptian Muslim
Brotherhood), tried to come to power by using democratic ways, and
would do quite well in several elections. Meanwhile, the practice of
Islamic banking also expanded. The MUI successfully campaigned for
further formalisation and regulation of interest-free banking (Bank
Indonesia 2002).
Despite these developments, no clear-cut, massive process of political
and legal islamisation took place. So far, islamisation appeared indeed
to be more cultural than politico-legal in nature. In fact, from 2001 to
454 JAN MICHIEL OTTO

2004, a working group under the authority of the Minister of Religion

drafted a new marriage act trying to improve the status of women. This
so-called Counter Legal Draft aroused so much protest from orthodox
Muslim organisations upon its publication, that it had to be withdrawn
by the end of 2004 (Mulia 2007: 128-145). However, Islamist senti-
ments did not altogether get the upper hand among the population as a
whole. Since the fall of Suharto in 1998, an overwhelming majority of
Indonesian Muslims has come out in favour of secular and nationalist
parties; this was confirmed in the 2004 parliamentary and presidential
elections. The two parties that won the parliamentary election in April
2004 – Golkar (21%) and PDI-P (19%) – were both secular in orienta-
tion, as was the third party, Wahid’s PKB (12%), which is allied to the
traditionalist NU. In October, Susilo Bambang Yudhoyono (SBY) be-
came Indonesia’s first directly elected president. SBY is a nationalist
with a military background and an experienced cabinet minister. He
leads a small secular party, the Partai Demokrat. Yusuf Kalla, a Golkar
politician and entrepreneur from NU circles, became his vice president.

The presidency of SBY (Susilo Bambang Yudhoyono)

Since the 2004 elections several legal changes have affected the existing,
balanced relationship between sharia and national law. These reforms
went in different directions. In 2004 the 1970 Act on the Judiciary was
replaced by Act 4/2004, which transferred supervision of Religious
Courts fully to the Supreme Court, thereby reducing the supervisory
role of the Ministry of Religion to an advisory one. In 2006, Act 3/2006
on Religious Courts, amending the 1989 Act, strengthened the court’s
jurisdiction in inheritance cases between Muslims, and expanded juris-
diction over cases in sharia economy (Ekonomi Syaria).
In order to establish guidelines for the resolution of economic dis-
putes in the Religious Courts, the Supreme Court issued in 2008 the
Compilation of Economic Sharia Law (Kompilasi Hukum Ekonomi
Syari’ah, usually abbreviated as KHES). In the same year, the
Indonesian parliament promulgated Law 21/2008 on Islamic Banking.
Together with Law 41/2004 on Religious Foundations (wakaf) and Law
38/1999 on Almsgiving (zakat) the KHES and the banking law have
now met the demand for an economic system based on principles of
Islamic justice (see 10.8). The Ekonomi Syaria regulations, however, are
all of a voluntary, optional nature.
In this process of islamisation, state institutions with a predomi-
nantly nationalist and secular outlook, such as the Bank Indonesia and
the Supreme Court, kept the say over legal developments. In the same
vein, in the area of marriage law, the secular General Courts were given
SHARIA AND NATIONAL LAW IN INDONESIA 455

a role in registering interreligious marriages by Act 23/2006 on Civil

Registration.
Act 11/2006 on special autonomy of Aceh replaced the 2001 Act on
the subject. It further regulated the competence of Aceh’s provincial
government to issue qanuns as well as the jurisdiction of the special
Islamic courts in the region (the Mahkamah Syari’ah). These powers
went clearly beyond the 2001 Act. 22 The 2006 law confirmed and for-
malised regulatory practices that had emerged since 2002 in Aceh, no-
tably the qanuns criminalising gambling and drinking and prescribing
the corporal punishment of caning. It has broadened the jurisdiction of
the Mahkamah Syari’ah by adding elements of criminal law (jinayah)
and commercial law (muamalat) to it, as already was indicated in
Qanun 10/2002. A legal debate has arisen about whether the qanun
provisions on criminal matters now overrule the applicability of national
criminal law, as laid down in the criminal code. The government and
the Supreme Court have the power to annul Aceh’s individual qanuns
for ‘going against the public interest or violating higher legislation, un-
less the law regulates otherwise [italics added]’. This may have occurred as
the expansion of jurisdiction has been approved in a general way by na-
tional law. So far the qanuns have been limited to minor crimes.
Human rights defenders have put forward that Aceh’s qanuns and other
sharia-based district regulations have encroached on human rights stan-
dards. This could subject such sharia-based regional regulations to re-
view by the Constitutional Court.
What do these developments in Aceh mean for the existing relation-
ship between sharia and national law? Lindsey & Hooker (2007: 252)
consider Aceh’s qanuns as potentially radical, but state that their imple-
mentation is considered by most Acehnese as symbolic rather than
hard-line Islamist. They do note, however, that since the tsunami of
December 2004, the qanuns have become more than just aspirational
and that the new courts are more willing to exercise their expanded jur-
isdiction. Indeed, the first and widely publicised caning of gamblers in
Bireuen in June 2005 has been repeated several times in other district
towns.

In 2008, freedom of religion came under attack from Islamist organisa-

tions who were putting pressure on the government to pronounce a le-
gal ban on the Ahmadiyya. The issue has been politicised since a 2005
MUI fatwa asking for a ban of this religious group, which considers it-
self Islamic, but which is not recognised by Sunni orthodoxy. Mosques
and members of the group have been attacked by mobs on Lombok and
elsewhere. While one government body advocated a legal ban, the presi-
dent’s legal advisors cautioned against it. In June 2008, a joint decree
was issued by the ministers of justice and religion warning, on the one
456 JAN MICHIEL OTTO

hand, Ahmadiyya adherents to return to true Islam or leave it, while

warning radicals, on the other hand, not to attack the Ahmadiyya, or
they would be sanctioned. Legally speaking, though, this decree did not
have the effect of a ban.
This illustrates the way issues of sharia and law are played out in pre-
sent-day Indonesia. Time and again they are politicised by Islamist
groups. Actually, since 1998 the MUI has shifted from a pro-govern-
ment role to a rather oppositional, Islamist stance. Meanwhile, the state,
while deliberately giving in to some demands, has consistently tried to
maintain a balance as well as overall control.
A notable instrument of this balancing effort are the Religious
Courts that have become a recognised and established part of the na-
tional judiciary under supervision of the Supreme Court. Cammack
(2007: 169) has compared the role of Religious Courts in the 1970s,
when they were ‘essentially informal and non-professional’ to their pre-
sent role. He writes:

Despite their shortcomings […] the unrestructured Islamic

courts were generally successful in addressing the needs of
those who used them. […] It is my sense that the professionaliza-
tion and bureaucratization of the Islamic judiciary has not fun-
damentally altered the essential institutional culture of the
courts.

Cammack calls the Religious Courts ‘a relative success story in

Indonesia’s otherwise dysfunctional legal system’ (ibid). A 2008 study
carried out by the Supreme Court and AUSAID revealed a high satisfac-
tion rate among the courts’ users – over 70 per cent of all clients and
80 per cent of the total applicants. It appears, however, that the poor
still face serious barriers in accessing the Religious Courts (Sumner
2008: 4). Indeed, it is a sobering thought that whatever law-makers or
judges may decide on the position of sharia in the national legal sys-
tem, it does not affect a considerable part of the population since they
are simply unable to afford a life within the limits of the law.

10.5 Constitutional law23

The words ‘Islam’, ‘Islamic law’, and ‘sharia’ do not feature in the con-
stitution. Thus, Indonesia is not an ‘Islamic state’, and Islam is not the
official state religion. Therefore, unlike in other Muslim countries, the
supremacy of the national constitution over competing normative sys-
tems should be beyond any legal doubt. Yet, despite this presumptive
clarity, one cannot consider Indonesia a fully secular state. The
SHARIA AND NATIONAL LAW IN INDONESIA 457

preamble of the constitution refers to the Pancasila state ideology as the

highest source of law, within which the first ‘pillar’ or principle is iden-
tified as ‘the belief in the One and Almighty God’. Further to this, athe-
ism is not recognised, and in order to marry, one must declare his or
her religion. The Ministry of Religion has also been specifically tasked
with translation of the first pillar into state policy and practice.
The Indonesian legislator has largely defined the relationship be-
tween national law and sharia in the 1989 Act on Religious Courts24 in
procedural terms, and in substantive terms in the Marriage Act 1/1974
and in the 1991 ‘Compilation of Islamic Law’. The legislator has further
created space for districts and provinces to experiment with sharia-re-
lated regional regulations through use of the Act on Regional
Autonomy (Act 22/1999, amended and replaced by Act 32/2004).
Exceptionally, in Act 11/2006 on Special Autonomy for Aceh, Jakarta
has empowered this autonomous region to enact regulations (qanuns)
that go so far as to include certain sharia-based criminal regulations
and punishments such as caning. In 2009 the outgoing provincial par-
liament of Aceh even approved a new qanun prescribing stoning as a
punishment for adultery; the legal status of this regulation, however, re-
mains highly contested. Beside these elements of potential ‘sharia-isa-
tion’ of the law, it should also be noted here that during the post-1998
constitutional reform process human rights were given a prominent po-
sition in Indonesia’s constitutional law.
This section will address in particular five key aspects of how sharia-
based law has been given legal and institutional spaces in Indonesia’s
constitutional system, namely the Religious Courts, the Ministry of
Religion, the Compilation of Islamic Law, human rights, and
decentralisation.

Religious Courts
The Act on Religious Courts (1989) provides a uniform regulation of
the position, support for, and competence of the Religious Courts
(Cammack 2003: 96). There are three distinct levels of adjudication. In
the first instance, each district has its own Religious Court, whose juris-
diction covers marital relations and inheritance issues of Muslims as
well as the affairs of religious endowments (wakaf). On the provincial
level, there are Religious Appellate Courts; at the apex is the Supreme
Court in Jakarta. The 1989 law not only provides the Religious Courts
with jurisdiction in matters of inheritance law, but also grants them the
authority to execute their own rulings.
A gradual transfer of administrative supervision over the Religious
Courts from the ministry to the ‘one roof’ jurisdiction of the Supreme
Court has been initiated by Act 35/1999, and was finally effectuated in
458 JAN MICHIEL OTTO

2004.25 Based on Law 4/2004 on the Judiciary, the Supreme Court

now oversees the sector of religious jurisdiction as it has done for dec-
ades with its other, secular sectors of general (civil and criminal), ad-
ministrative, and military jurisdiction. Presidential Instruction 21/2004
provides for the effectuation of this new policy for the Religious Courts.
While a Religious Court is essentially a state court, traditionally its
judges have been trained as religious scholars (ulama). Most judges
who presently work at these courts have a degree in sharia studies from
the IAIN.26 The law states that the judges of these courts must have
earned a degree in law or in Islamic law from an institution of higher
education. While most law degrees are obtained from secular faculties
of law, a degree in Islamic law is provided by the sharia faculties of
Islamic universities. Azra notes that the 2003 Advocates Act has also
opened up the lawyer’s profession to graduates of Islamic studies.
Interestingly, the Faculty of Syariah at Jakarta’s National Islamic
University (UIN) has been renamed ‘Faculty of Syariah and National
Law’. Its former rector writes: ‘Within this framework, Islamic law can
be studied simultaneously with national law in ways that can serve to fa-
cilitate further development toward the development of a distinctly
“Indonesian school of Islamic law”’(Azra 2007: 270).
In 2006, the 1989 Act on Religious Courts was amended to expand
the courts’ jurisdiction. Act 3/2006 provides that Religious Courts are
currently the only competent court in inheritance cases between
Muslims. The Act further grants the courts jurisdiction in matters of
Islamic finance in the framework of ‘Ekonomi syariah’. The Act also ac-
knowledges the special jurisdiction of Religious Courts in autonomous
regions, notably the Mahkamah Syariyah in Aceh, inaugurated in 2003
(Ichwan 2007: 193).

The Ministry of Religion

The Ministry of Religion provides supervision over Indonesia’s vary-
ing religions, namely Islam, Catholicism, Protestantism, Hinduism,
Buddhism, and, since 2006, Confucianism. As such, the ministry regu-
lates Islamic education and the mosques, as well as the holy pilgrimage
(hajj). The Ministry has offices in all provinces, districts, and towns,
known as the Bureau of Religious Affairs (KUA, Kantor Urusan
Agama). The Ministry has a Directorate for Islamic Affairs and the
Development of Sharia. However, its previous tasks in developing the
Religious Courts (Art.s 202-115 of the old Decree 1/2001) were removed
since the abovementioned incorporation of these courts in the national
judicial system in 2004.27
Together with the Ministry of Justice and the Supreme Court, the
Ministry of Religion also exercises supervision over marriage
SHARIA AND NATIONAL LAW IN INDONESIA 459

registration. It prints marriage certificates, with a standard taklik talak

clause, which provides women with the option of a divorce by ‘auto-
matic repudiation (talak)’ in the event that they are deserted, neglected,
abused, or not provided with financial support by their husband for a
specified number of months (Cammack et al. 2007: 112). Together with
the Supreme Court, the Ministry has directed the courts to interpret the
marriage act in ways favourable to women (Mulia 2007: 130).

The Compilation of Islamic Law and its legal status

The ‘Compilation of Islamic Law in Indonesia’ (Kompilasi Hukum Islam
di Indonesia) is a legal text intended to bring more legal certainty to the
application of sharia-based law by the Religious Courts. Law 1/1974 on
Marriage already stated in Article 2 that the requirements for marriage
are based on religion (i.e. for Muslims on Islamic marriage law). Since
the content of Islamic law is determined by the consensus of religious
scholars, courts have had to rely on a wide range of fiqh texts.28 This si-
tuation led to legal uncertainty, hence the government’s desire for an
authoritative restatement.
To obtain as much legitimacy as possible, the Compilation was
drafted and discussed both by jurists representing state institutions,
and by religious scholars well-versed in Islamic jurisprudence. The
Compilation is constructed as a legal code with three sections: marriage
law, inheritance law, and religious endowments (wakaf). It is comprised
of 229 articles and an explanatory memorandum. Although it was offi-
cially launched in 1991, first by Presidential Instruction 1/1991 and sub-
sequently through a ministerial decree, the Compilation is not a na-
tional law as such. Rather, it is presented by the government as a
‘guideline’ that the Religious Courts should ‘take into account as much
as possible’. The Compilation is formally presented as the Islamic law
of Indonesia, which has been in effect in the Religious Courts (Ka’bah
2007: 87, 282). Through this construction, the government has been
able to fend off accusations that it decides, by way of national law, about
the interpretation of the sharia.
The Compilation stipulates that the eliciting of religious rules from
the sharia is based on five sources: (a) standard texts from the Shafi’ite
school of jurisprudence; (b) additional texts from other legal schools; (c)
existing case law; (d) scholarly legal opinions (fatwas); and (e) the situa-
tion in other countries (cf. Hooker 2003: 23). While much of the con-
tents reflect the mainstream Islamic thought of Indonesia’s religious
scholars, on a number of points, the Compilation has adopted a remark-
ably progressive stance.29
Since 1991, the verdicts of Religious Courts have increasingly re-
ferred to this Compilation. According to Justice Busthanul Arifin of the
460 JAN MICHIEL OTTO

Supreme Court, chairman of the drafting commission, the Compilation

is an example of ‘positive law’. Others insist that it is an authoritative
restatement of existing legal practices, or of living adat law (Bowen
2003: 189-199). The renowned jurist Attamimi, on the other hand, ar-
gues that the legal design of the Compilation has limited its legal force
(Mawardi 2003: 43-44). And, in fact, although the Compilation is now
widely applied by the Religious Courts, it remains contested. Among its
controversial features is a total prohibition of interreligious marriages.
The Counter Legal Draft (see 10.4) testifies to a broadly perceived need
for change to bring it in accordance with national and international hu-
man rights legislation (Mulia 2007: 133).

Human rights
Soon after the Reformasi of 1998, Act 39/1999 on Human Rights was
enacted in order to clearly incorporate human rights standards and
principles into Indonesia’s domestic law. Subsequently, this was laid
down in the Indonesian constitution. A new chapter now includes prin-
ciples such as equality before the law (Art. 28(D)(1)) and non-discrimi-
nation (Art. 28(I)(2)). However, women’s legal status under the sharia-
based family and inheritance law violates these principles on several
points. In addition, the constitution provides for the freedom of all citi-
zens to have a religion (agama) and to practice it, as well as for the free-
dom of conviction (kepercayaan) (Art. 28(E)(2)). These freedoms are
guaranteed by the state (Art. 29(2)).
The key question as to how the rights of equality and religious free-
dom can be reconciled has been dealt with in a typically Indonesian
style, which, depending on one’s point of view, can be described as ba-
lanced, or ambiguous. In 2007, the Constitutional Court in a ruling30
on the Marriage Law of 1974 (see 10.6) concluded that on the one hand
the law’s articles on polygamy are justified by the freedom of religion
as a fundamental right accorded to every Indonesian citizen, while on
the other hand the law’s limitations to polygamy were not deemed con-
trary to the freedom of religion.
The degree to which freedom of religion applies in Indonesia appears
limited in more than one sense. First, the official state ideology of
Pancasila, which speaks of ‘the belief in the One and Almighty God’, is
fundamentally centred on the notion of theism, leaving no formal ac-
knowledgment of or room for atheism or polytheism. Secondly, there
are certain problems inherent to the state’s official recognition of six re-
ligions: Islam, Protestantism, Catholicism, Hinduism, Buddhism, and
Confucianism. Minority groups within Islam, such as the Ahmadiyya,
suffer from legal problems. As mentioned in the discussion above, in
June 2008, a Joint-Decree of the ministers of justice and religion called
SHARIA AND NATIONAL LAW IN INDONESIA 461

on the Ahmadiyya to stop practicing Islam in ways deviating from

authoritative Sunni beliefs. Furthermore, in a formal legal sense, the six
religions are all equal to one another, but in practice Islam occupies a
much stronger and more prominent position. The corpus of national
law includes several elements in the areas of marriage and criminal law
that conflict with the principle of equality of Muslims and non-
Muslims. Other difficulties are encountered in the area of administra-
tive law. The 2006 Revised Joint Ministerial Decree on the
Construction of Houses of Worship demands that religious groups
wanting to build a house of worship first obtain the signatures of at
least 90 members and 60 persons of other religious groups in the com-
munity stating that they support the establishment, as well as approval
from the local KUA office.

Decentralisation
Beside the incorporation of human rights, yet another post-1998 consti-
tutional reform was to fundamentally change the nature of the
Indonesian state. The far-reaching Act on Regional Autonomy – the
1999 Act amended as Act 32/2004 – has not only granted expanded re-
sponsibilities and powers to districts and provinces, but also democra-
tised their composition and decision-making. Many districts and pro-
vinces have used these new powers to locally introduce sharia-based
regulations (PerDa Syariah). According to Lindsey, around 160 such
PerDa Syariah were enacted in at least 24 of Indonesia’s 33 provinces
(2008: 107-108). Most of them target perceived religious, social, and
moral wrongs, such as prostitution, alcohol and drugs, gambling, and
pornography. Others promote and prescribe Islamic practices, such as
religious rituals, Quranic education, and dress codes. Salim cites the ex-
ample of Martapura on Kalimantan, where a district regulation prohib-
ited publicly eating or drinking during the month of Ramadan (2003:
229). Although legally speaking, legislative power concerning ‘religion’
belongs to the central government and not to the regional government,
these PerDa Syariah have not been formally contested by central
authorities.
Corresponding to the nation-wide democratic decentralisation, Aceh
and Papua have been granted even more autonomy resulting in a spe-
cial legal status (see 10.4). Since 1999, the Indonesian government has
resumed granting Aceh special autonomy in the religious, cultural, and
educational sectors. The successive governments, from Habibie (1999)
to Yudhoyono, have taken legal measures permitting Aceh the authority
to ‘enforce the sharia’.31 While Act 44/1999 on the Special Status of
Aceh had still been vague on this point, Act 18/2001 was already more
specific, both in creating space for Aceh’s own regulations (or qanun)
462 JAN MICHIEL OTTO

and in setting the limits. The Act stated that: a) the province may not
enforce sharia regulations conflicting with national laws (Art. 25); b) the
sharia only applies to Muslims (Art. 25 § 3); and c) rulings from the
sharia courts can be appealed before the Supreme Court in Jakarta,
where they can be reviewed and, if necessary, annulled (Art. 26). On
the basis of the 2001 Act, in 2002 and 2003 Aceh enacted several qa-
nuns (hereinafter ‘Q.’), such as Q. 10/2002 on Sharia courts, Q. 11/
2002 on the Implementation of the Islamic creed, worship and symbo-
lism, Q. 12/2003 on Intoxicants, Q. 13/2003 on Gambling, and Q. 14/
2003 on Improper Relations between the Sexes (Ichwan 2007: 205).32
Act 11/2006 has replaced the Acts of 1999 and 2001 and signifi-
cantly broadened the scope of sharia-based law in Aceh. Article 125
of this Act stipulates that implementation of sharia in Aceh covers
the following areas: religion (ibadah); family law (ahwal alsyakhshiyah);
private law (muamalah); criminal law (jinayah); the judiciary (qadha’);
education (tarbiyah); and the mission, promotion, and safeguarding of
Islam (dakwah, syiar, dan pembelaan Islam). Article 126 provides that
every adherent of Islam is obliged to obey and carry out Islamic sharia.
Everybody who lives or is present in Aceh is obliged to respect the im-
plementation of sharia. According to Article 127, the provincial and local
governments are responsible for the implementation of sharia. Article
128 provides that the Sharia Courts (Mahkama Shar’iyah) in Aceh form
part of the national system of religious jurisdiction and are ‘free from
any external influence’. The jurisdiction, supervision, organisation, and
procedures of these courts are further regulated in Articles 128-137 of
the 2006 Act. In 2009, Aceh’s legislature promulgated a regulation on
Islamic criminal law, the validity of which is highly contested (see 10.7).
Indonesia’s post-1998 constitutional law discontinued the authoritar-
ian centralist system of Suharto’s New Order, which strictly imposed on
society an official, harmonious view of state-religion relations and
stifled public debate in sensitive areas such as the relation between
sharia and national law. The new, democratised constitutional law al-
lows for debate and decision-making in multiple spaces about a broad
range of subjects. Today these spaces range from national parliament to
provincial and district legislatures, including the special case of Aceh;
from the Supreme Court as the apex of the national court system to
Religious Courts and General Courts throughout the country, including
the special courts of Aceh; and the Constitutional Court acts as guar-
dian of a constitution rejuvenated by references to all fundamental hu-
man rights. While the jurisdiction of Religious Courts has broadened,
so has the supervisory role of the Supreme Court. In practice, in
Indonesia, as in most other Muslim countries, the most pervasive influ-
ence of sharia remains in the area of family law.
SHARIA AND NATIONAL LAW IN INDONESIA 463

10.6 Family and inheritance law

Marriage, divorce, and matrimonial property are regulated by Marriage

Act 1/1974. Its provisions are elaborated upon by two Government
Regulations (GR), namely GR 9/1975, which elaborates the substantive
norms and procedures of the Act, and GR 10/1983 (amended by GR
45/1990), which contains special rules for civil servants. Both marriage
law and inheritance law are addressed by the 1991 Compilation of
Islamic Law (see 10.5). The text of the Compilation’s chapter on mar-
riage law matches the text of the 1974 Marriage Act in all respects, the
only difference being that some Indonesian terms are replaced with
equivalent Arabic words. There is no national legislation on inheritance
law for Muslims. The competent court for disputes between Muslims
concerning both marital and inheritance matters is the Religious Court.
The Act on Religious Courts of 1989, as amended by Act 3/2006, con-
tains procedural rules for marriage and inheritance law. More than 90
per cent of the caseload of the Religious Courts consists of divorce
cases (Cammack et al. 2007: 164).
This section will first address four subjects of the marriage law,
namely religion and validity, interreligious marriage, divorce and repu-
diation, and polygamy. This is followed by a short discussion about in-
heritance law. Finally this section will look into the role of Religious
Courts and trends in case law deriving from these courts.
The 1974 Marriage Act represents a relatively liberal interpretation of
sharia norms. It constrains the right of Muslim husbands to divorce
their wives unilaterally by repudiation (talak). It also grants wives a vari-
ety of instruments through which to obtain divorce and sets clear limits
on polygamy. The Act formulates substantive and procedural conditions
that must be met for both divorce and polygamy. While decisions on
these cases are entrusted to the Religious Courts, the review of their de-
cisions is left to the national Supreme Court. Gradually, the Supreme
Court has addressed many of the questions that Act 1/1974 and its gov-
ernment regulations had actually left unanswered. In doing so, the
Supreme Court has established ‘a regulatory regime which would cer-
tainly have met strong opposition if introduced transparently and di-
rectly in 1974’ (Cammack et al. 2007: 111).

Article 2 and the validity of marriages

The Marriage Act declares in Article 2(1) that a marriage is valid when
the two parties have concluded the marriage in accordance with their
religion and conviction. In this way, national marriage law for Muslims
is linked to sharia, and not to adat, which has, thus, been given a
464 JAN MICHIEL OTTO

second-rate position. The Act further stipulates in Article 2(2) that all
marriages must be registered according to the existing law.
Legal uncertainty has surrounded cases when a marriage was con-
tracted in accordance with the religious rules, but was not officially re-
gistered as legally required. Was it still valid?33 Yes, said the Islamists,
the orthodox scholars, and their organisations. No, said the nationalists,
the modernists, most jurists, and their organisations. The question is
whether paragraph 1 of Article 2 supersedes paragraph 2 of the same ar-
ticle. Bowen maintains, to the contrary, that the Supreme Court has not
developed a stable corpus of case law on the issue (2003: 182-185).
Indecisively, the Supreme Court in 1991 sided with the no-camp, in
1993 with the yes-camp, only to switch sides again in 1995. According
to Bowen, the debate continues (2003: 182-185). In any case, it is possi-
ble for unrecorded marriages to be registered retroactively.
The legal ambiguity pervasive in this area may also have negative re-
percussions on related subjects, such as polygamy, divorce and mixed
marriages.

Interreligious marriages
Religiously mixed marriages remain one of the most problematic areas
of the marriage law. The legality or validity of marriages between a
Muslim man and a Christian woman or between a Christian man and a
Muslim woman in accordance with Article 2 of the Marriage Law is
sharply contested.
In the dominant interpretations of the sharia, the first case is permis-
sible (Muslim man marrying a non-Muslim woman), but the second is
not. Nonetheless, judicial decisions tend to show otherwise. In 1974,
the Supreme Court held that a marriage between a Muslim man and a
Christian woman is valid.34 In 1986, the Supreme Court reviewed a
case in which a Muslim woman had married a Christian man, holding
that such marriage was also valid.35 Oddly, though, in the latter case the
Court reasoned that the woman was supposed to give up her religion
by marrying a Christian.
A fatwa by the MUI (the Council of Indonesian Religious Scholars)
in 1980 declared both cases of interreligious marriage to be forbidden.
The Compilation also forbids any interreligious marriage.
Consequently, during the course of the 1990s, mixed marriages have
become increasingly difficult to legitimise. Yet, Justice Bismar Siregar
of the Supreme Court stated in 1994 that he was opposed to mixed
marriages as a Muslim, but that he did consider them legal as a judge
(Bowen 2003: 242-248). The rejected Counter Legal Draft also states
that the marriage between Muslims and Non-Muslims is permitted.
The matter has taken a new turn with Act 23/2006 on Civil
SHARIA AND NATIONAL LAW IN INDONESIA 465

Registration, which grants general courts the authority to legalise inter-

religious marriages.
In practice, the most common solution for Muslim-Christian couples
wishing to get married is for the Christian spouse to convert to Islam.
For a number of years, the organisation Paramadina, under the leader-
ship of the late liberal religious scholar Nurcholis Madjid, made it possi-
ble for interreligious marriages to be contracted. The method used by
this organisation was to first contract the marriage in accordance with
Islamic precepts, and afterwards to marry the couple according to the
other religion’s norms. Subsequently, the couple could register the mar-
riage at the civil registrar’s office in the local government. Neither the
husband nor the wife needed to convert in order to get married, and
this option was, therefore, frequently used.36 Civil registries are known,
however, to have refused registration of interreligious marriages.

Divorce and repudiation

This subsection will explain that Act 1/1974 has established two differ-
ent procedures for divorce. The first procedure assigns a central role to
the husband and comes close to a formal repudiation of the wife before
the court. The second procedure prescribes how the wife can obtain a
divorce from the court. The provisions for both procedures reflect ef-
forts to make a compromised text acceptable to both islamists and liber-
al reformers.

Two procedures
The drafters of the 1974 Marriage Act were forced to take a stance about
the unrestricted unilateral repudiation (talak) of the classical sharia and
options for women wishing to obtain a divorce on their own initiative.
Remarkably, the word talak is neither mentioned in the Act, nor in its
explanatory memorandum. Instead the Act regulates court procedures
for ‘divorce’ (perceraian). It is only in the explanatory memorandum to
GR 5/1975 regarding Article 14 that the legislator actually discloses that
one of the legal procedures for a Muslim man to obtain a divorce is
through repudiation (cerai talak). According to Article 38 of the 1974
Act on ‘dissolution of the marriage’ (putusnya perkawinan), a marriage
can be dissolved only in three ways, namely by death, by divorce, or by
a judicial decision. A Muslim man who goes through the divorce proce-
dure by unilateral repudiation, even though he always has to address a
judge, comes under the category of ‘divorce by repudiation’ (talak). In
contrast, Muslim women, who according to sharia must also address a
judge to obtain a divorce, come under the category of ‘suing for divorce’
(gugat cerai).
466 JAN MICHIEL OTTO

Divorce by repudiation (talak)

With regard to the first procedure, the Act states: ‘Divorce can only be
effectuated in a court session after the court has tried to reconcile the par-
ties’ (italics added). The procedure for divorce through repudiation or
talak starts with a written application from the husband to the Religious
Court, explaining the reasons for his request. The court reviews
whether the conditions are met, and, if so, summons the petitioner and
his wife for reconciliation. If the court fails to reconcile the couple, re-
pudiation is pronounced by the husband or a representative before the
court. After the session, the presiding judge draws up a declaration that
records the divorce, which he then sends on to the Marriage Registrar.
The wife retains the right to appeal the talak.
Article 39(2) stipulates that such divorce ‘can only take place, if there
are sufficient grounds which make impossible the consensus which
ought to exist between husband and wife.’ The explanatory memoran-
dum to this article as well as Articles 19 and 14 of GR 9/1975 further
define the reasons for divorce. They include adultery; addiction, includ-
ing addiction to alcohol, opium use, or gambling; desertion; imprison-
ment; cruelty which inflicts damage; physical disability; and, finally,
continuous conflict and disruption of the marriage.

Suing for divorce (gugat cerai)

The 1974 Marriage Act provides for dissolution through ‘suing for di-
vorce’, as opposed to ‘divorce by repudiation’. It contains several proce-
dures for a judicial divorce to be obtained by the wife. The basic proce-
dure is provided for in Article 20 of GR 9/1975. Largely the same pro-
cedures, requirements, and grounds apply as those in cases initiated by
men (Art. 19). Many Religious Courts construe these procedures in
such a way as to also comply with sharia rules about divorce options for
women.
One option which is mentioned not in the law but in the
Compilation (Art. 45) and which conforms to sharia rules and is often
used in practice, is conditional repudiation (taklik talak). Prior to enter-
ing into a marriage, the groom assents to a number of conditions under
which he would automatically repudiate his wife. These conditions
would have to be proven in court. The practice of taklik talak is tradi-
tionally widespread in Indonesia – to the extent that the Ministry of
Religion has incorporated them since 1955 into the standard pre-printed
marriage certificate. The reasons for the use of taklik talak nowadays
conform to the abovementioned legislative grounds for divorce.
A second possibility for divorce is the syiqaq, a mediation procedure
that can be found in the classical sharia. A woman may use this
SHARIA AND NATIONAL LAW IN INDONESIA 467

procedure when requesting a divorce because of irreconcilable differ-

ences. A mediator representing the husband can pronounce a talak for
him (Cammack et al. 2007: 114). A third form of divorce is the fasakh,
which is more of a legal annulment than a divorce procedure. In the
classical sharia, this procedure tends to be used in cases of physical or
mental incapacity of the husband, a condition that is also listed in
Article 19(e) of GR 9/1975. A fourth possibility involves payment of a fi-
nancial compensation (khuluk) by the wife; Bowen calls this ‘divorce by
ransom’ (2003: 208).
Because these types of divorce exist in both religious and legal
sources, Religious Courts, when styling a dissolution taklik talak, syiqaq,
fasakh, or khuluk, are able to adhere to both normative systems at the
same time. In the eyes of conservative judges, the marriage legislation
has created new procedures, but the substance is still deeply inspired
by the sharia, which fundamentally grants the man stronger rights than
the woman. Nationalists and liberal reformers naturally disagree, and
they usually find the legislative texts as well as the Supreme Court rul-
ings on their side (Cammack 2003: 106-107).

Polygamy
The 1974 Marriage Act states in Article 3(1) that in principle a man can
be married to only one woman at the same time, and a woman to one
man only. The explanatory memorandum to the Act confirms that ‘the
act starts from the principle of monogamy.’ However, Article 3(1) also
establishes that ‘the [religious] court can give permission to a married
man to marry more than one wife, if this is the wish of the parties
concerned.’
The procedure for obtaining permission for a polygamous marriage
is laid down in Articles 4 and 5 of the Act, and Articles 40-44 of GR 9/
1975. In short, the man must submit a written application. The
Religious Court will only give permission if it finds that one out of
three substantive conditions is met:
– the wife cannot fulfil her duties as a wife;
– the wife is physically disabled or incurably ill; and/or
– the wife cannot give birth.

In addition, the law mentions in Article 5(1) three other requirements

of a more procedural nature:
– the wife must give her consent, unless this is not possible, or the
court does not deem it necessary;
– the man must prove that he is able to financially maintain his wives
and children, with a declaration from his employer, the tax agency,
or otherwise; and
468 JAN MICHIEL OTTO

– the man must declare that he will give his wives and children a fair
and equal treatment.

Once the paperwork is filed, the court summons the petitioning hus-
band and wives. If it finds that the law’s conditions for polygamy are
fulfilled, it issues a decision permitting the polygamous marriage.
Without such decision, the Marriage Registrar at the KUA is forbidden
to register the marriage. If a man marries a second wife without a judi-
cial decision, he faces a fine. Likewise, the registrar who registers a
polygamous marriage without prior court permission faces sanction,
even imprisonment.
For civil servants, the law is more limited. Government Regulation
10/1983 (amended as GR 45/1990) forbids polygamous unions between
two civil servants altogether. Civil servants who want to enter into a
polygamous marriage with someone who is not state-employed must
obtain written permission from his or her superior. For these types of
marriages, another specified procedure is prescribed.
In practice, polygamy is fairly exceptional in Indonesia37, and it ac-
counts only for a very small part of the workload of the Religious
Courts. However, its symbolic and political importance is considerable,
deriving from the fact that it is considered as one of the milestones
along the way to ‘introducing the sharia’ into national law.
Research of judicial decision-making in polygamy cases in the 1980s
and 1990s suggests a difference in the holdings of lower Religious
Courts and the higher courts who are asked to review cases on appeal.
In a number of cases, courts wrongly granted permission for a polyga-
mous marriage, but these were subsequently reversed by the Supreme
Court (Otto & Pompe 1988: 14-15; Butt 1999: 128). This shows that the
law on polygamy remains contested. During the post-1998 years of lib-
eralisation new pro-polygamy voices came to the fore (Bowen 2003:
224-227). By contrast, in 2004, proponents of the Counter Legal Draft
strived for a complete removal of polygamy (Mulia 2007) and President
Yudhoyono declared that the abovementioned regulation, which bans
polygamy by civil servants, is to be ‘reactivated’ (see 10.4). The
Constitutional Court in its 2007 decision on polygamy mentioned
above in the subsection on human rights (see 10.5) basically confirmed
the balanced position of the 1974 legislation.

Inheritance law
There is no national legislation concerning inheritance law. The Islamic
inheritance law in force for Muslims in Indonesia is laid down in the
1991 Compilation of Islamic Law. This is an almost identical copy of
the dominant interpretations of sharia. The Religious Court has
SHARIA AND NATIONAL LAW IN INDONESIA 469

jurisdiction in inheritance affairs. Yet, several studies have revealed that

it is rare for inheritance cases to be brought before the Religious
Courts. Indeed, they form less than 1 per cent of the courts’ workload
(Cammack 2007: 164).
The Compilation includes the stipulation that when a person has
sons and daughters, the sons will in most cases each inherit twice the
share awarded each daughter. This contravenes a Supreme Court deci-
sion on adat inheritance law from 1961, which ruled that sons and
daughters in modern Indonesia should inherit equal amounts. The
abovementioned stipulation did not enter into the Compilation without
controversy, and remains contested.
Yahya Harahap, a judge on the Supreme Court, argued for instance
during the drafting process of the Compilation that an equal division of
inheritance between men and women would not conflict with the
Quran. The socio-economic position and role of women had changed,
after all, therefore making the traditional allotment old-fashioned and
outdated. The proposal offered by Harahap was, however, rejected by
most religious scholars, who did not wish to diverge from the dominant
interpretation (Cammack 1999: 30). Similarly, ex-Minister of Religious
Affairs Munawir (1983-1993) frequently pleaded for an equal division.38
He sometimes accused the ulama of hypocrisy in this matter (Bowen
2003: 161-165), maintaining that many religious scholars had told him
in private that they would equally divide between their children. And, in
fact, in practice, it appears that many Indonesians take measures to en-
sure that their property will be divided equally between sons and daugh-
ters because they consider this to be fairer than the prescriptions of
Islamic inheritance law.
However, the way in which the Compilation dealt with inheritance is-
sues, has left most classical rules unchanged. The few innovative parts
deal with joint marital property (harta bersama) – a concept unknown in
classical sharia – and inheritance by adopted children – who are typi-
cally not entitled to anything under Islamic inheritance rules. According
to the Compilation, adopted children, even if they have not been named
in the will of the deceased, are still entitled to up to one third of the to-
tal inheritance. Here Indonesia follows the model of the Egyptian in-
heritance law of 1946.
The 1989 Law on Religious Courts confirmed the longstanding free-
dom of choice of Indonesian Muslims to bring their inheritance dis-
putes before either the secular General Courts (pengadilan umum) or
the Religious Courts and to have them decided on the basis of national
law, adat law, or Islamic law. Article 49 of this law attributed jurisdic-
tion to the Religious Courts ‘in cases relating to wills, inheritance […]
that are carried out according to Islamic law’. During parliamentary de-
liberations about the bill, this was interpreted as an implicit basis for
470 JAN MICHIEL OTTO

freedom of choice. It was then decided to lay this down in the General
Elucidation, thus stating that ‘[…] prior to the [initiation of the] case the
parties can choose which body of law shall be used in the division of
the estate’ (Cammack 2007: 159).
In an amendment of the 1989 law, by Act 3/2006, this freedom of
choice may have been reduced. At least, the general part of the elucida-
tion of the new Act suggests so in its citation of a phrase from the eluci-
dation of the old law that explicitly allows the parties’ freedom to choose
the applicable law and states that that phrase is abolished. On the other
hand, the new Article 49 does not clearly confirm any such change. It
does entrust the Religious Courts with the task and legal powers to set-
tle inheritance disputes between people ‘who adhere to the Islamic reli-
gion’. But, the elucidation of the new Article 49 states that the phrase
‘people (or entities) adhering the Islamic religion’ include those ‘who
have subjected themselves voluntarily to Islamic law concerning those mat-
ters which belong to the jurisdiction of Islamic courts […]’. The latter
clause suggests a continuation of the legal tradition of free choice of
law in inheritance matters. But the old provisions that deprived the
Religious Court of the power to decisively settle any dispute concerning
property, have now been removed.

Practices and trends in the Religious Courts

As a Religious Court has jurisdiction over marriage and divorce as well
as over inheritance matters and its legal position has changed with the
politico-religious tide, this section concludes with some observations
about three aspects of the changing role of Religious Courts. First, how
strictly do the courts follow the Marriage Act and the Compilation?
Secondly, to what extent are their decisions informed either by classical,
undulated sharia or by modern concepts of justice and equality between
men and women? And third, to what extent does the general public
make use of the Religious Courts, and why?
According to Butt (1999: 128), in most cases, the Religious Courts ap-
pear to comply with the marriage legislation. Where they have deviated,
for example in some polygamy cases (see above), the Supreme Court is
there to correct them. In-depth knowledge about the jurisprudence of
Religious Courts in Aceh is provided in Islam, law and equality in
Indonesia by Bowen (2003). The author undertook an anthropological
study spanning many years of practices and rulings of Religious and
General Courts in rural Aceh. From the research, it appears that in fa-
mily matters, the courts are primarily approached by women, and in
most of these cases they rule in their favour. Bowen explains that both
national legislation and Islamic law are more accommodating to the
rights of women than the rural adat prevalent in Aceh (Bowen 2003:
SHARIA AND NATIONAL LAW IN INDONESIA 471

84-88). While during the 1960s these courts had shown themselves to
be very sensitive to the consensus of rural communities,

[b]y the early 1990s, judges were emphasising the legal rights of
the individual Muslim, usually the Muslim wife or daughter […]
Some judges, jurists and many others have attempted to con-
struct an inclusive Islamic discourse that could take into account
norms of gender equality, the traditions of fiqh and, selectively,
adapt social norms (ibid 2003: 255-256).

The circulars and judgments of the Supreme Court in sharia-related

cases also indicate incremental attempts at liberalisation. Cammack
(2003: 109-110) cites Circular 2 of 1990, which emphasises that the role
of the religious judge in repudiation cases is not that of a witness,
whose task is merely to assess whether all conditions of the marriage
law have been abided by, but rather that of a judge who must adjudicate
in a matter involving two conflicting parties and who must resolve the
issue with a judicial decision.
In the Nur Said case originating in Aceh, in which the brother of a
deceased man demanded the entire inheritance, the Religious Court
decided that not only the brother, but also the only daughter of the de-
ceased would receive part of the inheritance. The Supreme Court, how-
ever, reversed this decision and argued that the child of the deceased
must inherit everything, regardless of whether the child was a son or a
daughter. Another inheritance case, Warsih vs. Iim, also demonstrates
that decision-making by a Religious Court is certainly not a matter of a
mechanical enforcement of sharia rules from the Compilation (Bowen
2003: 135-146). The judgment in this case does refer to the relevant arti-
cle of the Compilation, but instead of directly implementing it, the ar-
gumentation is centred on a number of social norms. In the ruling,
these norms are backed up by reference to ‘the current Islamic law that
is in force in Indonesia’, which is taken from four legal sources: the
Compilation, the traditions, the publications of a liberal Pakistani legal
scholar, and finally a Shafi’ite fiqh book. The Compilation is, thus, com-
plemented and legitimised by using other norms, carefully selected
from among many possible sources in order to achieve a socially accep-
table decision.
According to Nurlaelawati (2010: 143-144), judges in the Islamic
courts have generally followed the provisions of the Compilation of
Islamic Law in adjudicating cases before them. However, in some cases,
judges have ‘deviated’ from the Compilation and referred to fiqh in-
stead. Among the reasons is their intention to create public good (ma-
slahat) or to guarantee satisfaction of the parties through their judg-
ments. For reasons of legal justification, their decisions are then
472 JAN MICHIEL OTTO

presented in such a way as to demonstrate conformity with the sources

of Islamic law. Another reason, according to Nurlaelawati’s evaluation,
is that a number of judges simply have not accepted all the reforms of
the Compilation. Thus, judges continue to produce legal uncertainty
and anomalous decisions. In contrast, both Bowen (2003, 2007) and
Cammack (2007) make a more positive assessment of the ‘deviations’,
arguing that they are mostly made on the grounds of fairness, justice,
public interest, or common good (see 10.4).
Cammack et al. (2007) estimate that at least in the 1970s and 1980s
‘no more than about half of all Muslim divorces [were actually] pro-
cessed through Islamic courts.’ These findings are confirmed by a
2008 study of the Supreme Court and AusAID (Sumner 2008).
Cammack et al. conclude that ‘practical considerations of costs, conveni-
ence, and knowledge of the law’s requirements are the principal rea-
sons for non-compliance with statutory divorce procedures’ as ‘costs of
adherence in terms of expense and inconvenience outweigh the per-
ceived benefits’ (ibid: 121). They found that ignorance of the law is a fac-
tor in the non-compliance of divorce procedures, though the
Indonesian government and a number of NGOs have disseminated
much information about it. Another factor is the unavailability of docu-
mentary proof of a marriage, as ‘[t]hose who enter into unapproved
marriages will invariably secure an unapproved divorce should the mar-
riage fail’ (ibid: 123).
Cammack et al. also explain why Indonesian Muslims find compli-
ance burdensome, writing:

The simplest divorce requires at least three court hearings […

and moreover] entail[s] a certain amount of paperwork and bu-
reaucratic annoyance. The parties must obtain a letter of resi-
dence from the local village head, and must present an original
state-issued marriage certificate. For most litigants, the court
staff translates the couple’s wishes into a cognizable legal claim
or claims, and complete forms that constitute the complaint or
petition. Additional procedures are sometimes required to give
notice to an absent spouse; the parties must secure the atten-
dance of witnesses; and the court may require documentary evi-
dence of the couple’s property (ibid 122-123).

In addition, litigants must pay fees for obtaining documents and addi-
tional informal payments. It would appear, therefore, that non-compli-
ance with the divorce rules contained in the Marriage Act of 1974 is pri-
marily the consequence of neglect and avoidance, rather than principled
rejection and refusal of the law itself (ibid: 125). Thus, the widespread
evasion of statutory divorce requirements should not be interpreted as a
SHARIA AND NATIONAL LAW IN INDONESIA 473

dramatic failure of the marriage act. In the words of Cammack et al.,

the ‘[c]hanges to the law that require reasons for divorce and grant in-
creased rights to wives are undoubtedly changing popular attitudes’
(ibid: 127).

10.7 Criminal law

The current criminal code of Indonesia is not Islamic in nature and de-
sign, and based on the French-Dutch legal tradition. It does not incor-
porate hadd crimes, Islamic corporal punishments, or retribution-based
sentencing. Apostasy is not a criminal offence under national law. This
being said, Indonesian law does include a few crimes that relate directly
or indirectly to Islam and sharia. Article 156 of the criminal code makes
the spreading of hatred, heresy, and blasphemy punishable by up to five
years in prison. Although the law applies to all officially recognised reli-
gions, it is usually invoked in cases involving blasphemy and heresy
against Islam.
Today’s criminal code is to be replaced by a new code. This draft bill,
which has been worked on for decades, was presented to the president
in January 2005, but has since been postponed and shelved several
times. Its presentation to parliament scheduled for 2008 was once
again postponed. The latest versions of the draft bill reflect the French-
Dutch legal tradition, with little reference to sharia except for a few pro-
visions pertaining to sexual morality and virtuous behaviour. These arti-
cles have been the subject of intense discussion for a number of years,
in part due to connotations with the sharia concept of zina. For exam-
ple, draft Article 484 makes extramarital sexual intercourse (zina) pun-
ishable with a prison sentence of up to five years or a substantial fine.
This offence could also be interpreted as covering homosexuality and
the living together of unmarried couples, while Article 486 of the draft
bill makes unmarried cohabitation punishable with a sentence of up to
two years or a proportionate fine. Incidentally, the penalisation of un-
married cohabitation is not a new development in Indonesia.39 Many
questions have been raised on the mutual relations between the two
provisions and on the imminent problems that will undoubtedly arise
concerning evidence in such cases.
The latest draft bill also prohibits kissing in public, a provision that
has been included in the chapter regarding virtuous behaviour. In addi-
tion to many moral objections, doubts have been raised with respect to
the viability of enforcement as well as the economic consequences in
areas that largely survive on the tourist industry like Bali. The Islamic
mass organisation NU has spoken out against these proposals, arguing
that the inclusion of elements of sharia into Indonesian criminal law
474 JAN MICHIEL OTTO

would undermine social cohesion and tolerance. Several orthodox

Islamic parties and groups, on the other hand, have been eagerly propa-
gating stricter legislation in these areas for years.40
Beside the contested drafts of a new criminal code, three subjects de-
mand our attention here. First, the autonomous qanuns of Aceh; sec-
ondly, the criminalisation of behaviour that may disrupt interreligious
peace; and thirdly, the Anti-Pornography Act.
The special status of Aceh province, regulated by a 2006 national law
(see 10.4), has enabled the provincial government to make several
crimes punishable under Islamic law. The criminal provisions of those
provincial regulations or qanuns, take precedence over the criminal
code, and thus form an important exception (Lindsey & Hooker 2007:
245-249). Since 2005, sharia-based sanctions such as public flogging
have been applied occasionally in some of Aceh’s district towns.
Remarkably, since early 2007 no judicial order for such execution was
issued in the area of the provincial capital Banda Aceh.41
On 14 September 2009 Aceh’s legislative body, on the eve of its re-
placement by a newly elected council, passed a qanun on Islamic crim-
inal law (jinayat) and criminal procedure law. Article 24, section 1 of
this qanun regulates sanctions for adultery (zina). If it is proven that
adultery has been committed by two married persons, they are to be
stoned to death in a public place. In the case of unmarried persons,
they will each receive 100 lashes. However, it is unlikely that this qanun
is legally valid and can be implemented. The governor of Aceh, Irwandi
Yusef, has declared his strong and continuous objection to the regula-
tion. He stated that the regulation will never be implemented, that the
newly elected council will revise it, and that he will not approve it.42
According to Indonesian law, for the qanun to be valid the governor’s
consent during the making of a provincial regulation is required, as
well as his approval of the council’s decision to pass it. However, propo-
nents of the new regulation have contested this and maintain that the
qanun is already valid. Yet, the president of the Constitutional Court has
stated that the validity of the new qanun is still problematic from a legal
technical sense.43
Concerning the possible disturbance of interreligious harmony, a
Joint Decree of the ministers of Justice and Religious Affairs, dating
back to 1970, states that it is prohibited to convert people to a particular
religion in a region where another religion is prevalent (Bowen 2003:
236). Bearing in mind that Islam is the most common religion by far,
this decision can be seen as a form of official protection of Islam. A
joint decree from 2008 by the same ministers, warns and directs adher-
ents and leaders of the Ahmadiyya to refrain from religious practices
that deviate from mainstream Islam. Referring to Act 1 (PNPS) of 1965
on the Prevention of Abuse and/or the Defiling of Religions, the decree
SHARIA AND NATIONAL LAW IN INDONESIA 475

further states that non-compliance may lead to legal sanctions. The

same decree also warns opponents of Ahmadiyya to respect religious
communities and to refrain from illegal actions against this group, un-
der penalty of sanctions.
The 2008 Anti-Pornography Act, which was strongly promoted by
Islamist circles, bans images, gestures, or talk deemed to be porno-
graphic. The law has defined pornography very broadly as anything
‘which may incite obscenity, sexual exploitation and/or violate the moral
ethics of the community’. A section of the law allows members of the
public to ‘participate in preventing the spread of obscenity.’ In the be-
ginning of 2010, the Bandung police arrested four female dancers, who
were showing their underwear during a ‘sexy’ New Year’s dance perfor-
mance, and two men involved in the management of the alleged perfor-
mance. A senior Bandung policeman said the six could be charged un-
der the criminal code or the anti-pornography law, depending on the
prosecutors. Those convicted under the anti-pornography act can face a
maximum jail term of fifteen years. Rights groups have already lodged
a judicial review at the Constitutional Court demanding that the law be
dropped.44

10.8 Economic law and religious foundations

Following Law 3/2006, which extended the jurisdiction of Religious

Courts to economic sharia law, the Supreme Court issued a
Compilation of Economic Sharia Law (KHES) as an attachment to
Supreme Court Circular Letter 2/200845. Just like the Compilation of
Islamic Law (see 10.5), the KHES is not a law and does not impose
rules on citizens. Its four chapters address the following topics:
1. Legal Subjects and Property (subyek hukum dan harta);
2. Contract (akad);
3 Almsgiving (zakat) and Gifts (hibah); and
4. Sharia-based accountancy (Akuntansi Syari’ah).

The 796 articles of the KHES are formally based on legal sources and
principles of sharia, notably the Quran, the Sunna, custom (‘urf), and
consideration for the public interest (maslahat). In substance, this
Indonesian version of economic sharia has been adjusted to the policies
and rules of Indonesia’s national banking system and to practices on
the ground. Influence of sharia on Indonesia’s economic law can also
be found in laws regulating Islamic banking, Islamic taxation (zakat),
and religious charitable foundations (wakaf).
476 JAN MICHIEL OTTO

Islamic banking law

In 2008, a new Sharia Banking Act was passed by parliament. Like its
predecessor (Act 10/1998), Law 21/2008 acknowledges the principles of
Islamic banking as constituting part of the national banking system46
and establishes the supervisory authority of the central bank to ensure a
healthy and proper regulatory environment surrounding the Islamic
banking sector. In addition to the country’s central bank (Bank
Indonesia), the MUI (see 10.3) has certain powers concerning sharia
banking.47 The law provides for the MUI to lay down the relevant prin-
ciples of sharia in fatwas. A committee composed of officials from Bank
Indonesia, the Ministry of Religion, and ‘sharia experts’ is to incorpo-
rate these fatwas into the Bank’s regulations. Observers have pointed
out the danger of conflicting opinions between the two agencies.
Nevertheless, there can be no doubt that the national policy and super-
vision of Islamic banking will primarily fall under the jurisdiction of
Bank Indonesia. For example, a regulation issued in the summer of
2005 required that all rurally-based sharia banks draw up monthly re-
ports in accordance with strict guidelines; these reports are to be sub-
mitted for approval by Bank Indonesia. Forms of Islamic insurance,
stockbrokers, mortgage providers, and micro credit institutions have
also quickly begun to expand and now also fall under the financial
supervision of Bank Indonesia.

Almsgiving law or Islamic taxation

The Zakat Administration Law 38/1999 regulates the management of
alms paid for the poor (zakat). This law does not establish an enforce-
able obligation for Muslims to pay zakat. Rather, it is targeted toward
the unification, centralisation, and coordination of the numerous exist-
ing public and private zakat institutions. It is hoped that the act will in-
crease the amount of zakat payments, direct zakat funds to social wel-
fare for the poor, strengthen the legal basis of zakat collection, and
boost participation levels and the religiosity of Indonesians in general
(Salim 2008: 128). The law primarily deals with the tasks and powers of
the National Zakat Agency (BAZNAS) for the management of zakat,
but it also covers private zakat-related institutions. Furthermore, the law
makes zakat a tax-deductible expense for both private individuals and
firms. This has raised criticism that the law discriminates against fol-
lowers of other religions for whom no similar tax-deductible regulations
exist. Minister of Religion Munawir stated in 2001 that similar concepts
existing in other religions shall be taken into consideration in the fu-
ture; for the moment, however, priority lies with properly managing the
zakat (ibid: 138).
SHARIA AND NATIONAL LAW IN INDONESIA 477

Law on religious foundations (wakaf )

A wakaf is a religious foundation endowed by the founders with real es-
tate and/or tangible goods to be used in the interest of the community.
Act 41/2004 concerning wakaf established the independent Indonesian
Wakaf Agency (‘Badan Wakaf Indonesia’, abbreviated as BWI) and
charged it with the supervision of those who manage wakafs.
Government Regulation 42/2006 provides the substantive and proce-
dural rules for wakaf administration and corresponds with Part III of
the Compilation of Islamic Law, also dealing with wakaf. Local offices of
the Ministry of Religion, the so-called KUAs (see 10.2, 10.5), are respon-
sible for the registration of wakaf and report to both the Ministry of
Religion and the BWI. The BWI has the power to discharge or replace
the wakaf management and to decide in matters concerning the status
of a wakaf. The Minister of Religion and the MUI exercise advisory
powers only. Jurisdiction in matters pertaining to wakaf rests with the
Religious Courts.

10.9 International treaty obligations concerning human

rights

We have pointed out above that some provisions in Indonesia’s sharia-

based national law are in conflict with its human rights law (see 10.5).
In this section we examine whether Indonesia has ratified the main hu-
man rights treaties and whether, in doing so, it has entered into inter-
national legal obligations affecting its sharia-related domestic laws. In
particular, we will note how the monitoring bodies of those treaties have
assessed Indonesia’s fulfilment of its duties under international law.
Indonesia ratified CEDAW in 1984, including its optional protocol.
In doing so, the country made no reservations, and, therefore, agreed to
the treaty principles affirming equality between men and women.
Indonesia ratified the Convention Against Torture (CAT) in 1998 and,
finally, in September 2005 the International Covenant on Civil and
Political Rights (ICCPR). The National Commission for Human Rights
(Komnasham) has played a major role in promoting such ratifications,
and drawing attention to their legal consequences, such as Indonesia’s
obligation to report periodically to the monitoring bodies of those trea-
ties. While the post-1998 democratic reforms have been hailed as re-
markable improvements in human rights, concerns have been raised
about stagnation in the law reform process regarding the status of wo-
men and about the introduction of sharia-based criminal law in Aceh.
In 2007, in response to Indonesia’s periodic progress report, the in-
ternational CEDAW Committee expressed its concern that
478 JAN MICHIEL OTTO

the discriminatory provisions in the Marriage Act of 1974 […]

perpetuate stereotypes by providing that men are the heads of
households and women are relegated to domestic roles.48

The Committee further noted that the law allows for polygamy and sets a
legal minimum age of marriage at 16 for girls and that in general there
is a ‘lack of progress in the law reform process with respect to marriage
and family law, which allows the persistence of discriminatory provisions
that deny women equal rights with men’ (CEDAW 2007). Since the time
of the Committee’s previous report on Indonesia, where similar conclud-
ing comments were made, amendments to the discriminatory provisions
of the Marriage Act (1974) have not been undertaken. This prompted the
Committee to request that the Indonesian government ‘take immediate
steps to revise the Marriage Act of 1974 in accordance with its obligations
under the Convention’, to which Indonesian representatives expressed
their intention to amend the law without further delay (ibid).
Members of the Committee further urged Indonesia to address wo-
men and their role in marriage and family relations in a comprehensive
strategy for the elimination of discrimination. It noted with particular
concern that the government’s decentralisation policy had ‘resulted in
the uneven recognition and enforcement of women’s human rights and
discrimination against women in some regions, including Aceh’ (ibid).
It also took note of ‘the rise of religious fundamentalist groups advocat-
ing restrictive interpretations of sharia law, which discriminate against
women, in several regions of the country’ and concluded that:

[The Indonesian government] has rescinded a number of local

laws and regulations pertaining to economic matters such as
taxes, but has failed to rescind local laws that discriminate
against women on the basis of religion, including laws regulat-
ing dress codes, which are disproportionately enforced against
women (ibid).

In 2008, the international Committee against Torture convened to

monitor the implementation of the CAT in Indonesia.49 They expressed
deep concern that local regulations, such as the Aceh Criminal Code,
adopted in 2005, introduced corporal punishment for certain new of-
fences and furthermore that ‘the enforcement of such provisions is un-
der the authority of a “morality police”, the Wilayatul Hisbah, which ex-
ercises an undefined jurisdiction and whose supervision by public State
institutions is unclear’ (ibid). The Committee also concluded that:

the necessary legal fundamental safeguards do not exist for per-

sons detained by such officials [and] the execution of punishment
SHARIA AND NATIONAL LAW IN INDONESIA 479

in public and the use of physically abusive methods (such as flog-

ging or caning) […] contravene the Convention and national law.
In addition, it is reported that the punishments meted out by this
policing body have a disproportionate impact on women (arts. 2
and 16). The State party should review all its national and local
criminal legislations, especially the 2005 Aceh Criminal Code50,
that authorize the use of corporal punishment as criminal sanc-
tions, with a view to abolishing them immediately, as such pun-
ishments constitute a breach of the obligations imposed by the
Convention […].

It is hard to assess the impact of such conclusions of international com-

mittees on domestic decision-making in Indonesia. While certain
groups and institutions, including the departing provincial council of
Aceh in September 2009, choose to ignore, if not defy, the calls from
these international human rights committees, the latter’s conclusions
have certainly added weight to the claims of moderate politicians and
human rights defenders and are reflected in the policies of Aceh’s pre-
sent governor who belongs to the local Partai Aceh, which presently has
the majority, as well as in the post-2007 judicial policy in Banda Aceh.

10.10 Conclusion

Has Indonesia’s moderate Islam, for which the country has been
known since long ago, changed to the extent that puritan forces and in-
terpretations of sharia have pervaded national law? Several develop-
ments point in that direction. The jurisdiction of Religious Courts has
increased; new national laws on Islamic economic law – banking, taxa-
tion, almsgiving – have been promulgated; two major Compilations of
Islamic law have been issued by the government; inter-religious mar-
riages have become difficult to pursue and legally dubious at best; reli-
gious freedom for Ahmadiyya has been curbed due to pressure from
puritan groups; and Aceh introduced sharia-based law even in criminal
matters. It is also notable that through a variety of regional regulations
(the so-called PerDa Syariah), individual freedoms enjoyed by citizens –
to dress as they want, to move when they want, to eat and drink as they
like, to pursue religious studies as they like – have been curtailed in
quite a number of districts, towns and provinces.
Yet, in a recent book on islamisation of Indonesia’s law, Salim has raised
an important question about the essence of these legal changes, namely
whether they can be qualified as islamisation or Indonesianisation? He ar-
gues that:
480 JAN MICHIEL OTTO

The Islamization of laws in Indonesia […] is not a real or com-

plete introduction of shari’a. What on the surface appears to be
the Islamization of laws in Indonesia is in reality a symbolic to-
ken for the most part. […] [I]t is also an Indonesianization of
sharia law that is currently taking place. This means that the
Islamization of laws in Indonesia entails in part practical secu-
larization of shari’a, namely human interference through parlia-
mentary enactment in creating religious obligations that have
non-divine character (Salim 2008: 177).

Salim is certainly right in stating that the introduction of sharia in

Indonesia is not ‘complete’. It should be realised that in Indonesia the
bigger part of law has undergone little or no visible influence from
Islam. Indonesia’s constitution has remained secular, as have most of
its codifications, whether in administrative law, criminal law, civil law,
or laws of procedure. ‘Islam’ and ‘sharia’ lack a constitutional status as
such.
Salim also states that the islamisation of laws in Indonesia is not a
‘real’ introduction of sharia. In his view, most of the abovementioned le-
gal changes can also be interpreted as successful efforts by the state to
incorporate, subjugate, and control Islamic law as a subsidiary part of
national law and governance. Actually, I subscribe to this view, which,
ironically, is probably shared by many discontented puritans as well.
The powers of Religious Courts have indeed expanded. Yet, whereas
these courts used to be supervised by the Ministry of Religion, a tradi-
tional bulwark of religious scholars, they have now come under the con-
trol of the Supreme Court, which of old has been a stronghold of pro-
fessional jurists. Previously, Islamic banking, almsgiving, and the man-
agement of religious foundations were private matters, but they too are
now regulated and supervised by national agencies.
From the above paragraph it may seem that islamisation of law
should be understood simply as the outcome of a struggle between state
institutions and religious scholars. Here, one should distinguish be-
tween two main politico-religious forces, namely moderates and puri-
tans. Since Independence, the Indonesian government itself has been
dominated by moderate nationalists. Both Soekarno and Suharto were
essentially moderate Javanese Muslims, as were their successors. An
important legislative achievement of Suharto’s New Order regime was
the 1974 Marriage Act. It was, and still is, the mainstay of sharia-based
law. The 1974 law is a compromise between the government’s previous
drafts – which were decidedly more liberal – and the demands of a
fierce puritan opposition. Despite ambivalent legislation and ongoing
problems of implementation, the law brought an end to the unlimited
freedom of Muslim men to divorce their wives at will and to take a
SHARIA AND NATIONAL LAW IN INDONESIA 481

second, third, or fourth wife as they liked. It assigned the Religious

Courts the power to decide whether a man had good reasons for a di-
vorce or a next marriage. The law also almost equalised divorce proce-
dures for men and women. Thus, in spite of puritan resistance over the
past quarter of a century, the law of divorce by the Indonesian courts
has been gradually and quietly transformed (Cammack et al. 2007: 126-
127).
The processes of legal change, to which Salim refers in the above ci-
tation as ‘Indonesianization’ of shari‘a law and elsewhere ‘nationaliza-
tion of shari‘a’ (Salim 2008: 2), go a long way back indeed. In pre-colo-
nial Java, the sultans of Yogyakarta and Solo converted to Islam and su-
pervised the administration of justice by their religious officials
(panghulus). The Dutch already began in 1882 to formalise Islamic
councils, thus charging state-controlled bodies with the application of
Islamic law, in subservience to the secular, general state courts. After
Independence, Sukarno’s new government first transformed the Dutch
colonial office for religious affairs into a Ministry of Religious Affairs to
supervise Islamic affairs. Since Islamist forces such as Darul Islam
posed serious threats to the young republic, the government tended to
fear puritans, and to fight the militants among them. Hazairin’s
scheme to establish as a fifth Sunni school of Islamic law, the so-called
Madhab Indonesia, expressed the ambitions and hopes of moderate
Muslim legal scholars that Islam, local adat and a national legal tradi-
tion could go hand in hand. Such ideas were not welcomed, though, by
puritan scholars, who since the 1970s came under the increasing influ-
ence of transnational Salafist propaganda from the Middle East, espe-
cially from Saudi Arabia.
Under Suharto’s New Order, the government first did its utmost best
to control and oppress religious opposition. To this end, it set up the
MUI as a national ulama organisation and the PPP as an Islamic politi-
cal party, and it expanded and further formalised the Religious Courts
as part of the national judicial system. In the 1990s, when opposition
against his increasingly oppressive and corrupt regime mounted,
Suharto started to provide support to Islamist movements and organisa-
tions such as ICMI. Several Islamic scholars including NU-chairman
Abdurrahman Wahid played a leading role in the pro-democracy and
pro-rule-of-law forces that led to Suharto’s fall. Suharto’s vice president
and successor Habibie enacted several laws to regulate Islamic affairs
(see 10.4).
The next presidents, Wahid himself, then Megawati, and presently
Susilo Bambang Yudhoyono (SBY), arranged for a formidable increase
in democracy and human rights. Indonesia ratified major human rights
conventions without reservations, the army returned to the barracks,
and the civil war between the army and the Free Aceh Movement was
482 JAN MICHIEL OTTO

successfully ended with a peace agreement. Free elections on national

and local levels now saw secular as well as Islamic parties bid for the
public’s favour.
Generally speaking, secular parties such as PDI, Golkar, and PD have
been far more successful than Islamic parties such as PPP, PKB, PAN,
and PBB. In elections neither of them has made sharia a big issue. In
1999 and 2004, nationalist parties like Golkar and PDI and the secular-
oriented Islamic party PKB were the winners. In 2009, president
Yudhoyono’s Partai Demokrat won many votes. The Islamist PKS,
which has become increasingly popular for its sense of decency and dis-
cipline, had success in 2004, but in 2009 it did not make the major
breakthrough some had expected. It now seems to prefer the model of
the Turkish AK party, which promotes democracy and economic
growth, over the model of the more puritan Egyptian Muslim
Brotherhood. As Azra noted, in the elections PKS leaders concentrated
their political discourse on socio-economic subjects (2004: 12-14).
Remarkably, the promotion of sharia-based legislation, both in Aceh
as well as in other provinces and districts, has largely been driven by
non-Islamist parties such as Golkar and PDI (Bush 2008). Similarly,
Aceh’s turn to the sharia, based on 2001 and 2006 laws enacted in
Jakarta, did not unequivocally express the strong demand of all
Acehnese. On the contrary, when after the Peace Agreement the Free
Aceh Movement had turned into a regular political party, and this newly
formed Partai Aceh won the 2009 elections, they opposed the radical
turn to sharia-based law. Governor Yusef Wanandi personally opposed
the 2009 stoning regulation, which remains contested.
The election results confirm what had already been observed by so-
cio-legal scholars. In spite of all attention drawn by puritan movements,
and notwithstanding opinion polls reporting that a majority of
Indonesians want to ‘introduce the sharia’,51 legal development at the
grassroots level is often marked by pragmatism. Backstage, throughout
the country, numerous administrators, officials, judges, lawyers, and
above all the common people are attempting in most cases to pragmati-
cally utilise and blend the different normative systems in such a man-
ner that they are able to achieve desirable solutions.
As Bowen (2003: 255-257) has observed in rural Aceh and elsewhere,
Religious Courts in particular successfully attempt to construct an in-
clusive Islamic discourse that can take into account norms of gender
equality (human rights) and the traditions of fiqh, as well as social
norms prevailing in society. An obvious reason for common people to
turn to the Religious Courts is their good reputation in terms of accessi-
bility, integrity, and delivery of justice. For the time being, Religious
Courts are preferred over General Courts, which are known for their
corruption.
SHARIA AND NATIONAL LAW IN INDONESIA 483

Indonesia is presently conducting a unique experiment with demo-

cratic law-making in the context of cultural islamisation. In this process,
it has been responding both to Islamist pressure and the call to respect
human rights.
On the one hand, puritan groups have become more vocal, more
‘mainstream’, and more influential than in the past. Some groups like
FPI still use intimidation and violence to achieve their goals, unfortu-
nately with incidental successes. Education programmes in the Middle-
East and other exchanges with the Muslim world have created transna-
tional networks and, as such, channels for dissemination of Saudi
funds and puritan ideas. It also cannot be ignored that in the wake of
Suharto’s fall, Islam became for many Indonesians a symbol for the
modern, self-conscious citizen and a political statement against New
Order practices – against oppression and corruption, and for justice
and human rights. While wearing the veil could indeed reflect oppres-
sion of women in some cases, for other women the veil became a sym-
bol of seriousness, maturity, and social ambition (Brenner 1996).
On the other hand, the long tradition of most Indonesian Muslims
being moderate traditionalists has not disappeared altogether. Many
have associated themselves with their local adat, with local Sufi move-
ments, with traditionalist and social service organisations such as the
NU, and with the belief in the spirits of their ancestors and other spiri-
tual forces. Among bureaucrats, politicians, military, police, judges,
business, NGOs, academics, artists, intellectuals, journalists, and stu-
dents, many favour national unity, economic growth, democracy, and
human rights as the best path to socio-economic development. This
large group has always been opposed to the strict implementation and
enforcement of laws based on classical sharia.
In 2009, a team of Islamic scholars, representing two powerful mass
movements, namely the NU and the Muhammadiyyah, and led by the
late Abdurrahman Wahid, published a book entitled Ilusi Negara Islam
(The Illusion of an Islamic State). This book carefully documents the
ways in which Saudi-funded Salafi puritans have tried to infiltrate
Indonesia’s public and private institutions. It contains strong condem-
nations of such infiltration from both Islamic organisations, calling it
an attack on Indonesia’s society and culture. Judging from the above-
mentioned election results, these views are actually backed by a prag-
matic, silent majority that has consistently supported moderate parties
and politicians.

As Azra (2004: 12-14) has argued, terrorist bomb attacks have led most
Indonesians to strongly condemn radicalism and have instilled in them
a resolute will to tackle this problem. At the same time, most
Indonesians are not willing to sever the connections with their Islamic
484 JAN MICHIEL OTTO

traditions. Against this background, the position and role of sharia-

based law are bound to remain ambiguous and contested, moving back
and forth in the decades to come as they have done in the recent past.

Notes

1 The author is professor of law and governance in developing countries at Leiden

University, the Netherlands. He wishes to thank Adriaan Bedner, John Bowen, Mark
Cammack, and Andrew Harding for their valuable comments on previous versions of
this chapter. He also thanks Stijn van Huis for his extensive research assistance and
his meticulous documentation of post-2007 legal developments, notably in the area
of economic law.
2 An earlier version of the historical part of this chapter was published in Otto 2009b.
3 The term adat law (in Dutch adatrecht) was first used by Snouck Hurgronje in order
to describe local customs (adat) that fulfilled a legal function; he referred to ‘adats,
which have legal effect’ (Snouck Hurgronje 1893: 357). The argumentation for using
adat law as a standard legal concept was developed by Van Vollenhoven, for example
in Het adatrecht van Nederlandsch-Indië (1918: 8).
4 Javanese informants may possibly not have been very clear either, used as they were
to present themselves to the outside world as adherents of a specific religion, while
in private embracing a body of syncretic, pluralistic convictions (Ball 1981: 24).
Today, this tendency has not altogether disappeared.
5 In the Netherlands, the Batavian Republic was proclaimed in 1795 in the wake of the
1789 French Revolution. In France, during the first years of the nineteenth century,
Napoleon directed the unification and codification of customs and regulations and
modernised the government, the economy, and the military. As France’s political and
cultural influence increased also in the Netherlands, the drive for codification also
took hold there.
6 Both scholars were proponents of the legal theory of receptio in complexu, the total
embracement of the complete corpus of religious Islamic law. Later on, this theory
became subject to devastating attacks by Snouck Hurgronje.
7 Royal Decree of 19 January 1882, regarding the Religious Councils on Java and
Madura, published in the official gazette (Staatsblad) 82-152 jo. 153. The official name
of the councils was ‘Priests Councils’ (in Dutch Priesterraden).
8 From 1891 until 1898, he served as advisor to the Governor-General on ‘Oriental lan-
guages and Muhammadan law’ and from 1898 until 1906 he was the Adviser for
‘Native and Arab affairs’. Subsequently, he was appointed as professor of Arabic in
Leiden.
9 This reception theory formed a reaction to the older theory of receptio in complexu, as
defended by nineteenth century authors (see supra n. 6).
10 In Indonesian Islam, Hooker (2003) compares fatwas by the Muhammadiyah, NU,
and Persis with those of the national council of religious scholars (the MUI), which
was established later (see 10.3).
11 Here the courts in first instance were called ‘Kadi’s Council’ (Kerapatan Qadi) while
the court of appeals was called ‘High Kadi’s Council’ (Kerapatan Qadi Besar), see
Cammack 2007: 147.
12 Wakap or wakaf: the Indonesian term for waqf (Arabic) or religious endowment. It re-
fers to property that, in accordance with the rules of the sharia, is set aside for reli-
gious or social purposes and is administered by a kind of foundation.
13 This did not go as far as the recent autonomy laws on Aceh of 2001 and 2006.
SHARIA AND NATIONAL LAW IN INDONESIA 485

14 Under Sukarno’s rule, Indonesia left the United Nations in January 1965 in protest
of Malaysia’s becoming a temporary member of the Security Council. In September
1966, under Suharto, Indonesia reassumed membership (Cribb & Brown 1997: 86,
116).
15 See Article 10 of Act 14/1970; In Indonesia, since colonial times, the term ‘religious
jurisdiction’ has referred to jurisdiction for Muslims.
16 The enactment of the implementing Government Regulation 9/1975 only partially re-
solved this uncertainty (see 10.6).
17 Progressive Indonesian jurists were involved in the drafting of regulations on Islamic
banking, sponsored in part by USAID, the official American aid agency.
18 Both Wahid and Rais were to form political parties: Wahid the PKB, based on the old-
er NU; and Rais, the PAN, which had more in common with the old Masyumi party.
19 In 2002 the PPP and other small Islamic parties proposed to revise the constitution
in order to make Indonesia an Islamic state. In August of the same year, the MPR
(People’s Consultative Assembly) rejected this proposal, with the support of the NU
and the Muhammadiyah.
20 The Laskar Jihad was the biggest and probably best organised movement among the
Islamic militias. Another organisation, the Islamic Defenders Front (Front Pembela
Islam, or FPI) executed countless attacks on bars, brothels, and nightclubs in Jakarta
and its environs. The Jema’ah Islamiyah (JI) is mentioned in relation to the attacks on
Bali, and the Southeast Asian cell of Al-Qaeda. For an overview of these three organi-
sations see Van Bruinessen 2002. In 2003, the perpetrators of the Bali attack, all of
them members of the JI, were convicted and sentenced to death. In 2005 Abu Bakar
Ba’asyir, suspected to be the spiritual leader of the JI and of the attacks on Bali was
convicted to thirty months imprisonment. Besides these three organisations, a num-
ber of networks, often operating underground, have taken up the fight for an Islamic
state. They have once again united under the name Darul Islam or NII/TII (abbrevia-
tions for Islamic State of Indonesia/Islamic Army of Indonesia). In addition, local ra-
dical organisations have often been active, such as the Laskar Jundullah in southern
Sulawesi (ibid). On 10 November 2008, the men who had carried out the Bali bomb
attack, Amrozi, Imam Samudera, and Ali Gufron were executed. New suicide bomb-
ings took place on 17 July 2009 in two Jakarta hotels killing nine people. In
September 2009, Indonesia’s most wanted Islamist militant Noordin Top, the sus-
pected mastermind of violent bomb attacks, was finally traced and killed during a po-
lice raid in Solo. The Economist concluded in late 2008 that ‘Indonesia is, overall,
edging away from radical Islamism. But the trend is not irreversible, and the authori-
ties must avoid fostering fundamentalists by pandering to them’ (Economist 2008).
21 To explain this, it is sometimes argued that court procedures are time-consuming,
complicated, and expensive (Cammack 2007). Furthermore, a lack of knowledge of
rights and duties is cited, despite the fact that the Ministry of Religion has local advi-
sory offices that offer every prospective couple information about their rights and
duties.
22 In the concluding section of this chapter, I will point out that throughout Indonesia
politicians of secular nationalist parties have been involved in the introduction of
sharia-related regulations. In the case of Aceh the party which represents most vo-
ters, the Partai Aceh, has spoken out against this islamisation of law.
23 An earlier version of sections 10.5 and 10.6 was published in Otto 2009a.
24 Amended first in 2006, and for the second time by Law 50/2009.
25 Act 35/1999 was aimed at making the judiciary more independent from the executive
by removing some of the influence held by ministries with supervisory powers.
While the other special courts were granted five years in order to prepare administra-
tively for the changes, an exception was made for the Religious Courts following
486 JAN MICHIEL OTTO

protests by the Ministry of Religion and the MUI. According to appended Article 11
(A), section 2, no time limit was imposed on the Religious Courts (Salim 2003: 215-
216).
26 IAINs (State Academies of Islamic Sciences) have for many years been the main in-
stitutes of higher education in Islamic studies. In 2002, a number of them were ele-
vated so that they are now ‘National Islamic Universities’ (UIN).
27 For a more detailed description and analysis of the historical development of this
ministry, see Boland 1982. For many years, the Directorate for the Development of
Religious Courts did essentially fulfill the function of a court of appeals in religious
affairs. Since 1965, the Supreme Court has formally become the national court of ap-
peals in religious matters; nonetheless, the supervisory role of the directorate contin-
ued for many years (Hooker 2003: 37-38) until it was abolished with the complete
transfer of the sector of Religious Courts to the Supreme Court in 2004.
28 In 1958, the Ministry of Religion issued a Circular Letter indicating thirteen fiqh-texts
of the Shafi’ite school to be used by the Religious Courts. This canon has effectively
been in use until present times.
29 This is, for instance, the case in the stipulation that in cases where the only child of
deceased parents is female, she inherits the entire estate when both of her parents
die. This progressive interpretation was also followed by the Supreme Court in judg-
ments made in 1995, 1996, and 1998. In contrast, the widely held traditional inter-
pretation of sharia was that in such cases, the brothers and sisters of the deceased
would also inherit a portion of the estate. This has now been pushed aside (Bowen
2003: 195-199).
30 Decision 12/PUU-V/2007.
31 It remained unclear what the scope and meaning of this provision would be.
Prosecutor General Marzuki made it known that it could only pertain to private law
and not to criminal law. PKB leader Wahid was of the opinion that it was about the
underlying principles of the sharia, and not about the actual content. What was clear
was that various parties used this question to score political points, especially the
PKB towards the PDI, and not so much to resolve the real problems afflicting Aceh
(Salim 2003: 227).
32 For the content of these qanuns see Ichwan 2007: 205-214.
33 The legal requirement of registration, complete with a criminal penalisation, is not
contested. However, negligence and liability to punishment do not immediately and
in all cases imply that the marriage would be invalid.
34 Supreme Court decision 1650/K/Sip/1974, dated 13 November 1979, cited in Pompe
1991.
35 Supreme Court decision 1400K/Pdt/1986, dated 1989, cited in ibid.
36 Personal communication from a lawyer in Bandung, March 2005.
37 Practices of men secretly marrying their mistresses are not uncommon, though. In
this way sharia is used by men to legitimise their unfaithful behaviour. This, in turn,
often becomes a reason for the first wife to seek divorce.
38 Former Minister of Religious Affairs Munawir, for example, made no secret of the
fact that in his testament, he had made sure that all heirs, whether male or female,
would inherit the same amount, adding that many Islamic leaders had made the
same arrangements (Bowen 2003: 159-165; Cammack 1999).
39 In the 1990s, several cases led to convictions. On the one hand the prosecutors called
on an interpretation of Article 378 of the colonial criminal code, in which ‘stealing’
the honour of a woman was made punishable, and on the other hand they called on
adat law (Pompe 1994). Unmarried cohabitation is socially unacceptable in many
areas of Indonesia. In traditional areas, couples living together are sometimes at-
tacked and beaten by furious crowds. It is plausible that the government, by
SHARIA AND NATIONAL LAW IN INDONESIA 487

criminalising unmarried cohabitation, is trying to retain the initiative and to thereby

prevent such incidents from recurring.
40 On this, see articles in Tempo, February 2005; The Jakarta Post, 11 October 2003;
Republika, 30 March 2005.
41 Personal communication by Benjamin Otto, December 2009. A master student at
Free University, Amsterdam, he carried out research about the implementation of
Aceh’s sharia criminal law in the capital Banda Aceh, during Spring and Summer of
2009.
42 ‘Standoff over Aceh Stoning Legislation’, Jakarta Globe, 25 October 2009.
43 ‘Qanun Jinayat Perlu Diatur Teknis Hukumnya’, Serambi, 15 September 2009.
44 ‘“Sexy Dancer” arrests condemned by Indonesian feminists’, Jakarta Globe, dated 8
January 2010.
45 The Supreme Court had formed a committee to draft the Compilation of Economic
Sharia Law. Experts of the central bank (Bank Indonesia), the MUI’s national sharia
board, experts in Islamic economic law, and judges of both Religious and General
Courts shared their views during the drafting process.
46 Prior to 1992, it was not legally permissible to manage bank deposits without paying
out interest (Hefner 2003: 153). Banking Law 7/1992 implicitly allowed Islamic bank-
ing, especially through implementing Government Regulation 72/1992, which paved
the way for a dual banking system. At the initiative of the national council of reli-
gious scholars (MUI), ‘the Bank Muamalat Indonesia’ (BMI) was established. In the
years until 1988, dozens of rural banks attained the status of ‘rural sharia bank’.
After 1998, the number of Islamic financial institutions rose sharply (Bank
Indonesia 2002).
47 See Republika OnLine: http://www.republika.co.id/, dated 4 May 2005.
48 See CEDAW (2007), ‘Concluding comments of the Committee on the Elimination of
Discrimination against Women: Indonesia’, para.s 18, 19. CEDAW/C/IDN/CO/5, da-
ted 10 August.
49 See CAT (2008), Concluding observations of the Committee against Torture,
Indonesia’, para. 15. CAT/2/IDN/CO/2, dated 2 July.
50 Here the committee probably meant to refer to Act 11/2006 on the special autonomy
of Aceh (see 10.4).
51 In June 2008 such polls were published by Australia’s Roy Morgan Research.
Esposito and Mogahed (2007) discuss similar Gallup polls, and explain why the
press reports on such outcomes are usually misleading.

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125-147. Singapore: Institute of Southeast Asian Studies.
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11 Sharia and national law in
Malaysia

Andrew Harding1

Abstract

Malaysia is a multi-cultural Commonwealth country with a Muslim

majority and a constitution based on the Westminster model, em-
bodying federalism, multi-party democracy, constitutional monar-
chy, common law institutions and freedom of religion. Its legal in-
frastructure involves an increasingly contested bifurcation of juris-
diction between common law institutions – signally the civil
courts and the legal profession – and the Islamic (Syariah) Courts,
in which Islamic law is confined to personal law for Muslims. This
divide is the legacy of the colonial legal system and the pre-inde-
pendence accommodation between the different communities,
which are increasingly defined by religion rather than race. This
chapter traces the development of the complex relationship be-
tween the two systems in the context of Malaysia’s evolving but
strained constitutional structure and studies the terrain of the con-
flict between them in the context of a variety of deeply contested
legal and political issues.
Table of contents
11.1 The period until 1920. Colonial legal dualism and first
codifications of Islamic law 493
11.2 The period from 1920 until 1965. Consolidation and
constitutional change 497
11.3 The period from 1965 until 1985. The politics of ethnicity,
nationalism, and religion 502
11.4 The period from 1985 until the present. Islamic revival and
inter-religious conflict 503
Developments in three states 504
Dilemmas for the federal government 505
The 1999, 2004, and 2008 electoral events and
jurisdictional struggles 507
11.5 Constitutional law 510
Islam as the religion of the Federation 510
Freedom of religion 511
Islam as a state subject 512
The dualistic administration of justice 513
11.6 Family law and inheritance law 515
Polygamy and registration of marriages 516
Divorce – unilateral and by mutual approval 517
Inheritance 518
11.7 Criminal law 518
11.8 Other areas of law, in particular economic law 519
11.9 Obligations with respect to human rights 520
11.10 Conclusion 521

Notes 522
Bibliography 526
SHARIA AND NATIONAL LAW IN MALAYSIA 493

Malaysia is a multi-ethnic federal state with a population of approximately

25 million people, of whom about 60 per cent are Muslim and 40 per cent
are non-Muslim. The group of non-Muslims consists of Buddhists (19%),
Christians (9%), Hindus (6.3%), and Sikhs (0.4%). The members of the
native tribes of East Malaysia (Sabah and Sarawak) and of the orang asli
(original inhabitants) of West Malaysia (the Malaysian peninsula) profess
animistic religions, although large numbers of Dayaks, Ibans, and Kadazans
in East Malaysia have converted to Catholicism. The largest ethnic group in
Malaysia are the Malays (50%), followed by the Chinese (24%), the
indigenous people (11%), and the Indians (i.e. those of South Asian
heritage, 8%). Bahasa Malaysia is the official language, but English, Chinese
(Cantonese, etc.), Tamil, Telugu, Malayalam, Panjabi, Thai and several
indigenous languages in Eastern Malaysia are also widely spoken.

(Source: Bartleby 2010)

11.1 The period until 1920

Colonial legal dualism and first codifications of Islamic law

Islam came to Malaysia2 in the fourteenth century by means of Arab

merchants and Sufi missionaries. When the Malacca sultanate was cre-
ated in the early fifteenth century, its Hindu founder Parameswara con-
verted to Islam. The royal houses of the Malay states, which culturally
and politically derived from the Malacca sultanate, linked themselves
symbolically with the Arab mainstream Islamic tradition, generally at-
tempting to base their laws and governments on Islamic principles and
Malay custom (adat). Hence, the Ruler of a state was head of both adat
and Islam.
Nonetheless, for the purpose of this study it is important to realise
that at the time there did not exist a sharp distinction between adat and
Islam. It was simply not conceived that adat and Islam could be in con-
flict with each other. As Joseph Minnatur (1968) says,

[i]n pursuit of justice and fair play, the adat considers itself to be
in harmony with religious law. It declares:

Customary law hinges on religious law,

Religious law on the word of God.
If custom is strong, religion is not upset,
If religion is strong, custom is not upset.3
494 ANDREW HARDING

In reality, however, some of the adat principles actually contradicted

Islamic law, especially with regard to the position of women4, and in
general one could claim that the restraining influence of adat prevented
the full adoption of Islamic law.5
The pre-colonial legal system was, thus, influenced by Islamic law as
well as adat law. The administration of justice varied from state to state
and from time to time. Islamic law played an important role as the per-
sonal and religious law of Muslims (family law, succession, religious
law relating to mosques, trusts (waqf), taxes (zakat), and so on), while
adat played an important role in criminal law and in cases of property
and inheritance, but only a marginal role in family law. The influence
of adat was the strongest in the state of Negri Sembilan. Interestingly,
there were no customary courts and conflicts were usually judged by
the khadi (Muslim judge), demonstrating once again that adat and
Islam were not viewed as being in conflict with each other. Parties were
given the opportunity to appeal to the Sultan-in-Council. Although aca-
demic scholars describe the nineteenth century legal systems of Malaya
as Islamic, in practice they were often very far from the Islamic ideal,
though to a large degree this depended on the power and the inclina-
tion of the Ruler of a particular state (styled ‘Raja’ or ‘Sultan’), as well
as on the extent of adherence to adat in that state.
The legal system as a dualistic whole of Islamic law and adat contin-
ued to exist until the coming of the British administration at the end of
the nineteenth century. The degree of pluralism further increased with
the migration of people from South China and from the Indian subcon-
tinent throughout the second half of the nineteenth and first half of the
twentieth century. The pre-colonial nineteenth century legal system in
the Malay states is exemplified by Terengganu, a state that has been – at
least up to the state elections of 21 March 2004 – at the forefront of
Islamisation. That legal system was summarised by British colonial offi-
cial Hugh Clifford in his report to the Colonial Secretary entitled An
Expedition to Terengganu and Kelantan, 1895. Clifford claimed that before
his arrival, the powerful usurper Sultan Baginda Umar (1837-1876) had
applied the sharia corporal punishments with harshness but impartial-
ity. But by the time Clifford visited the state, the legal system, both civil
and criminal, was being used by powerful aristocrats to exploit and ter-
rorise the lower orders for their own benefit; there was no semblance
of justice, Islamic or otherwise. The mere fact that Clifford commented
on this, seems to suggest that it was quite unusual for Islamic law to be
applied in an undiluted fashion.
The British established ‘indirect rule’ throughout the Malay states,
which were technically protected states during the colonial period, and
now form nine of Malaysia’s thirteen states. The other four states –
Penang, Malacca, Sabah and Sarawak – were already British colonies
SHARIA AND NATIONAL LAW IN MALAYSIA 495

from around the late eighteenth or early nineteenth centuries.6 Under

the treaties concluded between the British Crown and the Rulers of the
Malay states, the Ruler was obliged to receive and act on the advice of
the Resident (the British advisor under Treaty provisions), except in re-
lation to matters pertaining to ‘Islam and Malay custom’ (Maxwell &
Gibson 1924; Kamali 2000). With their field of influence having be-
come limited to ‘Islam and Malay custom’, the Malay ruling class
started to embark upon regulating Islamic matters. To this purpose they
used two British-introduced instruments: the State Councils and the po-
sitive law (Orders in Council) (Roff 1998: 212). According to Roff, much
of the institutionalisation of Islam in Malaysia took place in this context
and under the auspices of the British (ibid).
The eventual outcome (by about 1920) was a system that could be
called ‘colonial legal dualism’, in the sense that judicature was divided
between English ‘common law’ and Islam/adat. Common law became
the general law, with Islamic law and Malay adat existing under its aegis
together with Chinese customary law and other forms of customary and
religious law. This description began to apply to the various Malay states
at different dates between 1874 and 1920. It was only after 1920 that
English law penetrated to such an extent that the description became
wholly accurate. English-style legal institutions and legal principles were
gradually introduced either through legislation (for example, the Anglo-
Indian codes) or through judicial interpretation. Islamic law remained
the personal and religious law of Muslims. In general, adat no longer
played a role in criminal law after its replacement by the Federated
Malay States Penal Code of 1915 (now Law No. 574, Malaysia). Of course
this code only applied to the Federated Malay States (FMS), not the
Unfederated Malay States (UMS), as discussed below.

The Malay Rulers of the different states did not in general resist the in-
troduction of English legal institutions in the form of common law
principles, courts, and English-style legislation and governance. Indeed
several of them owed their thrones to British intervention in internal
conflicts. In the colonies formed by the Straits Settlements English law
was also introduced as the general law, but modified in its application
to the different communities (Harding 2001, 2002). An important ex-
ception was that Islamic law was, by statute, applied as the personal law
for Muslims.
However, the Malay Rulers did to some extent attempt to resist British
efforts to integrate the nine Malay states. Only four states joined the
Federation of Malay States (FMS) in 1895, namely Selangor, Negri
Sembilan, Perak, and Pahang. The other five were known under the
name ‘Unfederated Malay States’, consisting of Johor, Kelantan,
Terengganu, Kedah, and Perlis. The process of progressive federalisation
496 ANDREW HARDING

caused internal resistance because it was considered to be a disguised at-

tack on the sovereignty of the Rulers (rather than on Islam as such,
which was in fact unaffected by the 1895 federalisation and subsequent
forms of centralised control).
In the period between the 1870s and 1920, the main effect of British
intervention on Islam was that it tended to concentrate religious power
in the hands of religious scholars (ulama), who depended directly on
the Ruler for their positions. This group of conservative religious scho-
lars was referred to as ‘the Old Group’ (Kaum Tua). As an indirect con-
sequence of British colonial intervention, a recognisable split between
these conservative legal scholars (Kaum Tua) and Muslim activists
(Kaum Muda) began to appear (Tregonning 1962: 162). The Kaum
Muda, also referred to by some as ‘the Young Group’, threatened the
position of the Kaum Tua from about 1900 onwards (Peletz 2002: 53).
They had strong links with the Middle East, Cairo in particular, and in
opposition to the Kaum Tua, which was often associated with the ruling
class, sought to achieve independence. They wanted to bring down the
established authority and introduce Islamic modernism in its stead
(Roff 1998: 214-215). In the judgement of a British District Officer who
studied adat extensively in the early twentieth century, it is likely that in
this context Islamic law would have replaced adat as the general law if
British intervention had not checked it (Wilkinson 1908: 48-49). As we
have seen, in the end the British successfully introduced British com-
mon law, leaving sharia to apply as personal law for Muslims only. This
did not serve a divide et impera strategy, as was the case in other colo-
nised countries. In fact, the British attempted to integrate as much as
possible.
Another result of British intervention was a tendency to formalise the
Islamic system of justice as a reaction to the injection of common law
institutions. Indeed in the late nineteenth and early twentieth centuries
the ruling Malay class and the Kaum Tua, under the ‘guidance’ of the
British, began the process of formally codifying the Islamic system.
This process included some codification of substantive law and ‘reorga-
nization and rationalization’ of the Syariah (Sharia) Courts, of which
the latter process had started to unfold around the 1890s (Peletz 2002:
47-63).7 Codification of the Islamic system occurred both in the Malay
States (federated and unfederated) and in the Straits Settlements, and
covered criminal law as well as personal and family law. For example,
the 1917 Code of Criminal Procedure of the state Kedah stipulated, on
the basis of sharia, that a person who caused severe physical suffering
could be punished with diyya (blood money). In 1916 the ruling Malay
class and the Kaum Tua set up a Religious Council (Majlis Agama
Islam) in Kelantan to ensure proper administration of justice in the field
of Islam (see 11.2 below). This would also happen in Kedah in 1948 and
SHARIA AND NATIONAL LAW IN MALAYSIA 497

in the other Malay states in 1949. The Religious Councils followed the
Shafi’ite school in its legal interpretations, but in case the results of the
interpretations were in conflict with the general interest, they could also
make use of the Hanafi, Maliki, or Hanbali schools. The British, of
course, made sure that these initiatives were within the boundaries of
what they saw as acceptable judicial practice.

11.2 The period from 1920 until 1965

Consolidation and constitutional change

During the interbellum there were few changes in the relations between
colonial common law, Islam, and adat, except for the above-mentioned
reorganisation of the Syariah Courts, a process which continued during
the 1920-1965 period. A policy of legal harmonisation was in general
pursued, in which legal pluralism was accommodated within a com-
mon-law framework. The position of the common law also remained
virtually unchanged between 1920 and 1965, although the legal institu-
tions based on British law continued to spread in this period from the
Straits Settlements to all the Malay States.
The Japanese occupation of 1941-1945 left no legal changes of lasting
interest. It contributed, however, to a heightened sense of ethnic polari-
sation between Malays and Chinese in particular (Peletz 2002: 59).
Hence, when the British attempted to establish a Malayan Union in
1946, which would have established a unitary state and accord more or
less equal treatment to Malays, Chinese, and Indians under the consti-
tution of this Union (Peletz 2002: 59), a Malay political opposition
movement came into existence in which Islam played but a subordinate
role to Malay nationalist sentiment. As a consequence of this resistance,
in 1948, the Union was replaced by a federation of eleven states that
formed the Federation of Malaya and consisted of a combination of the
former Straits Settlements of Penang and Malacca and the nine other
states located on the Malay peninsula, of which only four had joined
the Federation of Malay States (FMS) in 1895 (see 11.1). Under the new
federation, the Malays were given back some of their pre-war privileges
(Peletz 2002: 60) and, crucially, traditional governance was reinstated
in the Malay states.
In 1957 the Federation became formally independent with the procla-
mation of the Merdeka (Independence) Constitution. The former
British colonies Sarawak and Sabah, both located on the island of
Borneo, joined the Federation in 1963. This move was initially opposed
by the Indonesian government and led to the so-called Indonesia-
Malaysia Confrontation (Konfrontasi) of 1962-1966. Nevertheless, the
Federation of Malaysia, comprised of fourteen states, came into being
498 ANDREW HARDING

with the joining of the Federation of Malaya with Singapore, Sabah and
Sarawak. Singapore separated from the Federation in 1965.
The Merdeka Constitution was drafted and adopted in 1957, when
Islam was a much more peripheral issue than it is now, being much
less important in the minds of the constitution-makers than emergency
powers or the monarchy, for example. Essentially, the Report of the
Constitutional Commission of 1957, a drafting body consisting of five
Commonwealth jurists under the chairmanship of Lord Reid, a Scottish
judge, formed the basis of the Constitution of the Federation of Malaya
(1957) (the Merdeka Constitution), and later of the Federal Constitution
of Malaysia (1963), which entered into force with the formation of
Malaysia.
Concerning the role of Islam, the constitution entrenched the situa-
tion which had applied under British rule in the Malay States: in the
Federation’s political system this role was confined to the States and
dealt with by the Ruler of a state in consultation with the Religious
Council, of which the first had been installed in Kelantan in 1916 (see
11.1), and which were established in all states by 1949. Islamic law was,
thus, outside the purview of the common law courts, but its sphere of
operation was nonetheless ultimately constrained by the British legal
structure. In terms of jurisdiction, Islamic law was confined to personal
status law for Muslims, notably family law. In brief, it had no role, or
only a ceremonial role, to play in the constitution. It was clear that an
Islamic state as such was not contemplated and that the issue of mak-
ing Islam the official religion of the Federation was merely a symbolic
recognition of Malay Muslim identity.
Ironically, none of the Commissioners, who were appointed by their
respective governments, was Malayan and only one of them, the
Pakistani Judge Abdul Hamid, was Muslim. It seems likely, however,
that the latter was included for his experience of constitution-making in
Pakistan. His stance as a dissenter on several issues such as citizenship
and fundamental rights was in fact generally based on constitutionalist,
rather than Islamic, principles. In his note of dissent, he did express
support, however, for making Islam the official religion of the
Federation, which is now the position under Article 3.8
Abdul Hamid’s view was in fact in accordance with the position of
the multi-party Alliance, the predecessor coalition to the current
Barisan Nasional (BN), then led by Tunku Abdul Rahman. The Tunku
was in favour of Article 3 on the grounds that the provision was innocu-
ous; would not prevent the state from being secular in nature; was simi-
lar to provisions in constitutions of other Muslim countries
(Afghanistan, Iran, Iraq, Jordan, Saudi Arabia and Syria were cited);
was found in the constitutions of some of the Malay States; and was
agreed to unanimously by the Alliance, which also included non-
SHARIA AND NATIONAL LAW IN MALAYSIA 499

Muslim parties (Federation of Malaya Constitutional Commission 1956:

96).9 The latter’s acceptance of Islam as the official religion of the
Federation was part of a political settlement in return of which they
would obtain citizenship and the right to education in their mother ton-
gue. In the constitution, Islam was thus proclaimed to be the religion
of the Federation when it came into effect on 31 August 1957 (Harding
& Lee 2007).
Islam per se was little discussed in the drafting process and there was
no proposal that an Islamic state along the lines of Pakistan, for exam-
ple, should be adopted. Despite the apparent failure to fully address in
the constitution the religious predisposition of the majority of the popu-
lation, the 1957 Constitution was approved by the federal and state legis-
latures and all key stakeholders. Islamic jurists, of whom there appear
to have been rather few at that time, also appear to have supported (se-
cular) constitutionalism. For example, the late professor Ahmad
Ibrahim (1917-1999), the doyen of Islamic jurisprudence in Malaysia
for many years and the founding Dean of the Khulliyyah (College) of
Laws at the International Islamic University Malaysia (now named after
him), wrote several pieces from a constitutionalist perspective, even
though he was also a fervent advocate of Islamisation (Ibrahim 1977,
1989a, 2000).
The Constitutional Commission did not, however, have carte blanche
in settling the constitution; it was tied by its terms of reference, which
were agreed upon in London in negotiations between the Malay leader-
ship and the British Government in 1956. Essentially, their brief was to
give constitutional effect to: (1) the survival of the existing monarchies
(the sultanates of the nine Malay States) and the federal system to
which it was linked; (2) political agreements concerning special privi-
leges for the economically disadvantaged Malays; and (3) citizenship
and related rights of the non-Malays.
Thus, the constitution that emerged was an entrenchment of a social
contract reached between the main communities. Otherwise, everything
was left more or less as it had been under British rule, albeit with some
advances in terms of democracy and constitutionalism more generally,
for example in the enumeration of fundamental rights.
Resistance to British rule focussed on issues relating to ethnicity and
unification rather than religion. Just as they resisted the federalisation
attempts of the British in 1895, the Malays had again objected to the
British attempt in 1946 to do away with the Rulers and the State gov-
ernments, which were seen to be quintessential elements of Malay cul-
ture. They also objected to the granting of equal citizenship to the non-
Malays. Thus, in spite of the constitutional enumeration of fundamental
rights the process of federalism, independence and constitution-making
also resulted in the special position of the Malays being recognised in
500 ANDREW HARDING

terms of special privileges (e.g. quotas for university places, scholar-

ships, places in the public service, and trade licences), and even as an
exception to the general principle of equality before the law.10 Hence, it
was Malay nationalism, defined in relation to the Chinese and Indian
communities, rather than Islam, defined in relation to Buddhism and
Hinduism, that characterised the politics of this period. The historical
facts about religion and law were entrenched in the 1957 Constitution,
but not essentially changed by it.

Since the beginning of the Malayan Union of 1946 there have been two
political currents among the Malays in Malaysia. The United Malays
National Organisation (UMNO) of the Malay nationalists formed the lar-
gest political force in Malaya and was also the leading member of the
Alliance (later Barisan Nasional – BN), which included non-Malay coali-
tion partners.11 UMNO was formed out of an independence movement
that opposed the British Malayan Union proposal of 1946. Since inde-
pendence, UMNO has ruled without interruption. The other primary
political current, the Islamic party, Partai Islam Semalaysia (PAS), was
founded in 1948, but its existence for the time being had little effect.
This would change from the 1970s onwards (see 11.3 below). Suffice it
here to mention that according to Roff (1998: 218) the PAS policy cov-
ered elements of thinking of both the old Kaum Tua and the younger,
activist Kaum Muda, safeguarding Malay interests and promoting the
establishment of an explicitly Islamic polity.
The previous section explains why in Malaysia Islam is within state,
as opposed to federal, jurisdiction and within personal rather than pub-
lic law. Islamic law operates as an exception to the common law, the lat-
ter being the general law as received (now) under the provisions of the
Civil Law Act of 1956, which codified what was already the case and
that which had previously been consolidated in similar provisions of dif-
ferent dates for the varying States (see 11.1 above). ‘Law’ according to
the 1957 Constitution is the written law, common law, custom, and ha-
bits; Islamic law is explicitly excluded in this article, suggesting, oddly,
that the constitution-makers did not consider it worth mentioning in
this context.
One of the great tasks of Islamic law in Malaysia has been, and con-
tinues to be, the achievement of uniformity among the state jurisdic-
tions. Since 1952 attempts have continued to be made to provide unifor-
mity between the various State Enactments on Islamic law. The states
were competent to make material and procedural legislation to support
administration of justice according to Islamic law, but their competence
was limited to personal and family law and to limited jurisdiction in re-
lated religious matters falling under the purview of criminal law. As ex-
plained elsewhere, this criminal jurisdiction is not general, but confined
SHARIA AND NATIONAL LAW IN MALAYSIA 501

to personal law-related issues, such as in the case of khalwat (close

proximity between unmarried persons of the opposite sex). The result is
that while Islam is generally regarded as ‘official’ only in the ceremonial
sense (although even this position is contested), there are actually four-
teen different systems of Islamic religious administration and Islamic
law, and each state (plus the Federal Territories) has its own
Administration of Islamic Law Enactment and its own Islamic Family
Law Enactment.12
In each state the Ruler retained a dual function as Head of Islam and
primary authority responsible for the enforcement of adat. He was ad-
vised by the Religious Council (Majlis Agama Islam) (see 11.1), which
was led by a jurist (mufti), who was also competent to promulgate for-
mal religious legal opinions (fatwas) (Ishak 1989: 415). Since these fat-
was were issued by the Religious Council they had official status.
Moreover, a few years after independence, a State Department for
Religious Affairs was established in each state that became responsible
for the Syariah Courts and other syariah matters as well as for the ap-
pointment of judges and for the enforcement of Islamic law in general.
According to Peletz, adat was not accorded a place within the jurisdic-
tion of this Department and it ‘[…] received no institutional supports in
any way comparable to those underwriting Islam’ (2002: 60). State leg-
islation concerned, for example, the registration of Muslim marriages
and divorces. In these laws Islamic law was not in general codified; they
merely provided the basis for enforcing Islamic law. Appeal could be
made to the Ruler-in-Council, who had the authority to appoint a com-
mission to handle the appeal. The state laws determined that the legal
principles of the Shafi’ite school were applicable.13
With regard to the position of women, this varied according to
whether Islamic law was or was not modified by adat. Under the matri-
lineal and democratic adat perpatih of Negeri Sembilan, women enjoyed
extensive property rights and a married man joined his wife’s family
(see also note 4). Adat temenggong, prevailing in other states of Malaysia
(see also note 4), was patrilineal and authoritarian in most of its forms.
As such, the position of women was the same as their common posi-
tion within Islam, except that under the rule of harta sepencarian ((divi-
sion of) matrimonial property), divorcing spouses divided (and still di-
vide) equally property brought into the marriage. While something re-
sembling a women’s movement can be discerned in the Straits
Settlements in the early twentieth century, it was not until after World
War II that women’s rights became a major issue in the Malay States.
An incident in 1951, in which functionaries of the ruling party UMNO
spread a pamphlet stating that adat law with regard to property was not
in accordance with Islam and was not justified towards men, stirred
502 ANDREW HARDING

feelings of resentment in Negeri Sembilan, where adat perpatih was ap-

plicable (Ali 1963: 33; Hooker 1972, 1973: 509).
In summary, the position of sharia in relation to common law, as per-
sonal law for Muslims, in fact remained unchanged, notwithstanding
the national struggle against the British attempts to form the Malayan
Union (1946), the subsequent creation of the Federation of Malaya
(1948), and the independence of the Federation with its new constitu-
tion (1957 and 1963).

11.3 The period from 1965 until 1985

The politics of ethnicity, nationalism, and religion

Although Malaysia had emerged by 1965 as a Muslim-majority state,

the maldistribution of the benefits of economic development had not
been solved by the special privileges of the Malays as authorised by the
1957 Constitution. Rural Malay disaffection surfaced in serious riots fol-
lowing favourable results for non-Malay parties in the 1969 elections.
The riots, collectively known as the ‘May 13 riots’ resulted in the imposi-
tion of martial law under emergency powers for almost two years.
Religion played no role in the May 13 riots.
The resumption of democratic normality in 1971 was conditional on
renegotiation of the ‘social contract’ concluded in 1957. The special pri-
vileges of the Malays were extended and entrenched – so much so that
they were placed beyond public debate and formed the basis of a New
Economic Policy designed to give bumiputera (now defined as Malays
and natives of Sabah and Sarawak) a 30 per cent share in the economy
within twenty years (i.e. by 1990). In terms of religion and the legal sys-
tem, these measures had the effect of increasing authoritarianism but
did not affect the constitutional position of Islam.
During the late 1970s and 1980s Malaysian society experienced a re-
surgence of Islam in the wake of the Iranian revolution of 1979. This is
referred to as the ‘dakwah (lit. call; missionary) movement’ (Nagata
1984; Muzaffar 1987; Anwar 1987). During this period, the Islamic
Party PAS, whose influence had previously been minimal, was able to
press legal claims at the boundaries where Islam and the common law
met. As a self-proclaimed ‘true follower of both Malayan and Islamic
principles’, PAS worked for the establishment of a true Islamic state, in
which only Muslims were to hold political power (Kamali 2000: 8). At
the end of the 1970s PAS took over the state government of Kelantan, a
State that was traditionally Islamic, for a short period of time. For hun-
dreds of years Kelantan has been the Malaysian state with the closest re-
lations with the Islamic world in general and the Middle East in particu-
lar (cf. Roff 1996). During PAS’ tenure of its state government at that
SHARIA AND NATIONAL LAW IN MALAYSIA 503

time, and again from 1990, PAS promoted Islamisation to the full ex-
tent possible given the limited powers of a state government in this
regard.
The Islamic revival in Malaysia signified a challenge for the policy of
harmonisation with which the government had until then been able to
keep Islamic aspirations in check, or to a certain degree marginal.
Events in the Middle East and the development of increasingly powerful
Islamic movements in Iran and Pakistan, though, resulted in a stronger
call for Islamisation in the political domain.
The ruling Barisan Nasional (BN), a coalition of parties representing
different ethnic communities, led by Dr Mahathir Mohamed from 1981
to 2003, took its stand on the basis of Malay political dominance and
economic development. With the aim of undercutting PAS’ appeal, it
mounted a modest programme of Islamisation of state and law: in the
legal system, where the process of harmonisation of Islamic law and in-
stitutional reform was commenced; in education with the creation of an
International Islamic University and assistance for Muslim students;
and in banking with the creation of an Islamic banking system (Islamic
Banking Act of 1983; Hidayat Buang 1998: 44).
Government policy under Mahathir, emphasising economic develop-
ment, leaned towards ‘Islamic values’ such as discipline, reliability, in-
tegrity, cooperation, and hard work (Kamali 2000: 160), but this policy
did not lead to radical changes in the position of sharia. The Islamic
Family Law (Federal Territory) Act 1984, for instance, was aimed at uni-
fying and modernising the personal and family law for Muslims. For ex-
ample, it provided certain conditions to be complied with before a court
could sanction polygamy. The attempt to create a uniform family law to
be applied in each of the states was found by conservative elements to
be too radical in its modernising measures and not in accordance with
traditional sharia, as a result of which three states (Kelantan,
Terengganu, and Perak) either rescinded their provision similar to the
the Islamic Family Law (Federal Territory) Act 1984 or retained their
own un-reformed law, so that merely the court’s consent was required.14
In the result, although the 1984 reformed law was speedily copied by
various states, nothing was done to increase the actual scope of the
sharia per se, which remained limited to personal status law for
Muslims.

11.4 The period from 1985 until the present

Islamic revival and inter-religious conflict

During the late 1980s and early 1990s there was some discussion pro-
moted by the then Lord President (chief justice) of the development of
504 ANDREW HARDING

a ‘Malaysian common law’ that would incorporate Islamic values and

other elements. Ultimately this discussion came to nothing; it was
pointed out by the legal profession that the common law in Malaysia
was already a ‘Malaysian common law’, as the law had developed from
the original English model in line with the legal culture and social facts
of Malaysian society. But it could hardly be said that Malaysian law had
become in any real sense more Islamic as the imprint of British com-
mon law remained strong. Indeed, it was only in 1985 that appeals to
the Judicial Committee of the Privy Council in London were finally
abolished.
Under Mahathir, the Westminster system of government based on the
1957 Constitution had, however, become more authoritarian, with suc-
cessive constitutional and legislative amendments giving more power to
the government.15 In 1988 the matter of jurisdiction over Islamic law
cases came to a head, when the government decided to restrict the jur-
isdiction of the civil courts. An amendment to Article 121 of the consti-
tution limited the jurisdiction of the civil courts regarding decisions of
the Syariah Courts (see 11.5). As a result, Syariah Courts were granted
much more independence in the field of personal law. This was done
in the context of a constitutional crisis over government interference
with the judiciary, which had become more activist in the brief period
following the abolition of the appeal to the Privy Council in London.

Developments in three states

The period in question also marks the rise, and perhaps also the fall, of
PAS. Having briefly taken over the government of the state of Kelantan
in the late 1970s, PAS was able to capture the state again in 1990. After
the election victory a coalition of PAS and an anti-Mahathir splinter
party of the UMNO took over the administration of Kelantan. They pos-
sessed an overwhelming majority in the State Legislative Assembly and
PAS’ popular leader, Nik Abdul Aziz Nik Mat, became the Chief
Minister. Kelantan subsequently commenced a program to incorporate
Islamic principles into the law and government policy. These attempts
at Islamisation first involved some small changes in the rules for the
government apparatus, such as dress codes and stipulations concerning
public entertainment and the sale of alcohol. The second initiative for
new legislation, namely a hudud code of criminal law that introduced
Islamic criminal offences and punishments, such as cutting off the
right hand for theft, was extremely controversial. However, on
November 25, 1993, the State Legislative Assembly unanimously ap-
proved the hudud law.16 A chorus of dismay met the passing of the hu-
dud law in Kelantan, not just from lawyers, non-Muslim groups and po-
litical parties, but also Muslim groups such as the Sisters in Islam, who
SHARIA AND NATIONAL LAW IN MALAYSIA 505

vigorously objected to the discriminatory effect of several provisions

against women and its inconsistency with the concept of fundamental
rights in the constitution (Ismail 1995). The hudud law of Kelantan was
even accused by some (who perhaps had their tongues firmly in cheek
and were attempting, as they saw it, to call PAS’ bluff) of being insuffi-
ciently Islamic in that it did not apply automatically to non-Muslims
(who were allowed, however, to opt into the hudud law).
In Terengganu, where PAS took over the State government between
1999 and 2004, a hudud law was also passed. It should be mentioned
that Terengganu PAS Chief Minister, Hadi Awang, was instrumental in
the hudud episode. He also twice proposed in Parliament a bill provid-
ing for the death penalty for Muslims who apostatise. The hudud affairs
in these two states developed into a new conflict between the PAS and
the BN.
In the small northern state of Perlis, dominated by the BN, steps
were made to solve the ‘problem of apostasy’ by the passing of the
Islamiah Aqidah (Islamic religious belief) Protection Enactment in
2000. This law, inter alia, empowers the Judge in the Syariah Court to
make an order detaining for up to one year in an Aqidah Rehabilitation
Centre a person who attempts to change his or her religion if the per-
son refuses to recant. Until now, this is the most extreme position taken
with regard to the issue of apostasy. In none of the states is apostasy
punishable by death, although Malaysia adheres to the Shafi’i school of
law and according to prevailing Shafi’i interpretations apostasy should
so be punished. There is presently a range of opinions both within the
Muslim and non-Muslim communities as to the proper limits of
Islamisation. Judging by the election results of 2004, and especially
those of 2008, the majority view apparently supported by non-Muslims
and many moderate Muslims is that Islamisation has proceeded far en-
ough. While PAS gained votes from the BN, other secularist opposition
parties made even greater gains, and even took over control of the state
governments in Selangor, Penang, Perak and Kedah.

Dilemmas for the federal government

These developments placed the Federal Government in a politically dif-
ficult position: it was concerned about isolating PAS, which by then
(although no longer) had become its main political rival and appeared
to be fully Islamic. Thus, it maintained a policy of Islamisation that, as
has been indicated above, was visible in the fields of education and in
commerce and banking, policies which had begun in the early 1980s.
At the same time, it did not wish to compromise economic growth,
especially in circumstances in which its moral legitimacy from an
Islamic standpoint might well be questioned.17 In any case, it could not
506 ANDREW HARDING

support hudud law without placing great pressure on the inter-racial, in-
ter-religious nature of the ruling BN coalition itself and alarming the
non-Muslim minorities, on whose support it increasingly depended.
However, it could also not oppose hudud law without appearing to
Muslims to be un-Islamic as alleged by PAS.
The electoral successes of PAS created a new environment for the
discussion of the role of Islamic law. Beginning around 1999, for exam-
ple, there was public debate about the concept of an Islamic state,
which intensified and broadened following an announcement by the
Prime Minister Dr Mahathir Mohamad in Parliament that Malaysia was
an ‘Islamic state’. Dr Mahathir even went so far as to say that Malaysia
was a ‘fundamentalist, not a moderate Islamic state’, and that it was
also a ‘model Islamic state’.18 These statements sparked great contro-
versy. Catholic bishops and non-Muslim parties, for example, de-
nounced them as creating a climate of fear and discrimination in a so-
ciety that has always embraced religious and ethnic pluralism, and as
being factually incorrect as an analysis of the Federal Constitution. On
the other side, PAS criticised Dr Mahathir’s statements as being false
and not in accordance with Islam. An Islamic state, they said, is pre-
cisely what they wish to create if they get into power, and what they
have been attempting to implement in Kelantan and Terengganu, albeit
within the severe constraints of a federal constitution. For half a century
PAS had based its politics on the idea that Malaysia should become an
Islamic state. PAS sees the order established by the Federal
Constitution of 1957 as secular, un-Islamic, corrupt, and, together with
the common law, as an obstacle to the establishment of an Islamic state.
PAS, however, covers many different opinions, and is as such forced to
reach political accommodation with other opposition parties (which
proved successful in the 2008 elections); for that reason it has refrained
from explicitly making clear what an Islamic state would look like.
The constitution in fact has made precious little concession to the no-
tion that the Federation has a Muslim majority. There is, for instance,
no requirement that the Prime Minister must be a Muslim (otherwise
for state Chief Ministers). Although Article 3 names Islam as the reli-
gion of the Federation, it has until recently always been agreed that this
provision does not in any sense establish an Islamic state, but merely
provides for the religious nature of state ceremony. Article 3 goes on to
say ‘but other religions may be practised in peace and harmony in any
part of the Federation’ (Kamali 2000: chapter 3). While Article 3 has
historically been viewed as a provision with mere ceremonial signifi-
cance, there is now a debate in which certain scholars argue that the ar-
ticle gives a mandate for the application of Islamic law as fundamental
law, and in any case that Islam has more than mere ceremonial
significance.
SHARIA AND NATIONAL LAW IN MALAYSIA 507

The 1999, 2004, and 2008 electoral events and jurisdictional struggles
The constitutional debate intensified into profound political struggle
during a passage of events between 1997 and 2004. Despite the appar-
ently calm rejection of the majority of the population in the 1999 elec-
tions of calls by PAS for reform, that election indicated some surprising
developments. Large numbers of Malay/Muslim voters (traditional
Government supporters) were angry with the treatment of former
Deputy Prime Minister, Finance Minister and anointed successor to
Mahathir, Anwar Ibrahim, who was dismissed, arrested, and charged
with corruption and sodomy in 1988. They were also dismayed by the
fallout from the economic crisis of 1997-1998 and defected to PAS,
which based its campaign on a platform of furthering attempts to create
an Islamic state. As a result, PAS not only substantially increased its re-
presentation in the federal Dewan Rakyat (lower house) from seven to
27 seats, enabling them to lead the parliamentary opposition for the
first time in Malaysian history, but also retained control over Kelantan
and additionally won control of Terengganu, another traditionally
Muslim state.19 The post-election period saw the Government attempt-
ing to control the spread of support for PAS by for example: restricting
the publication of its newspaper Harakah to twice-monthly and only for
party members; interfering with the political content of Friday sermons
in the mosques; and presenting UMNO as the party of true, moderate
Islam, and PAS as the agent of international terrorism (by claiming that
PAS is supportive of international terrorist groups). In the meantime,
PAS itself appeared to be undergoing a predictable internal power
struggle in which the ‘traditionalists’ (principally the ulama) have been
attempting to reassert themselves against the ‘young professionals’.20
Attempts to Islamise the states under PAS control brought constitu-
tionalism and the common law directly into question. Islam is a state as
opposed to a federal subject, and the powers of the different States are
severely circumscribed to the extent that implementation of such a pro-
gramme requires the cooperation of the federal legislature in effecting
constitutional amendments which, as matters stand, cannot obtain the
support of the crucial two-thirds majority in lower and upper houses. In
fact, the federal opposition itself, the Barisan Alternatif (Alternative
Front), inaugurated in 1999 and now replaced in 2008 by the Pakatan
Rakyat (People’s Alliance), is made up of parties that hold directly con-
tradictory views on the relationship between Islam, the common law,
and the constitution. PAS, on the other hand, is restricted by the need
to cooperate with the other opposition parties. And the post 9/11 envir-
onment has generally reduced their appeal in the eyes of the electorate.
This was particularly evident in the federal and state elections of March
2004, when PAS’ position was shown to have seriously eroded. It won
508 ANDREW HARDING

only six seats in Parliament, losing its position as main opposition party
to the mainly Chinese Democratic Action Party (DAP), and also lost
Terengganu and only won its heartland state of Kelantan by the narrow-
est of margins following a recount. In contrast, the BN under the new
Prime Minister Abdullah Ahmad Badawi increased its proportion of the
vote from 54 per cent to 64 per cent. This reversal could be ascribed to
a number of factors, including: PAS’ failure to convince voters of its
moderate intentions; the lack of any consensus between the opposition
parties concerning the Islamic state issue; the subsidence of disquiet
over the economy and the Anwar Ibrahim issue; and the ‘honeymoon’
popularity of the new Prime Minister, who was only the fifth in 47 years
since independence.

The hudud matter has in effect been resolved by the de facto position
that the state hudud laws of Terengganu and Kelantan cannot be en-
forced due to doubts as to their constitutionality. A case in which the
Federal court was petitioned directly on the basis that the hudud law of
Kelantan was beyond the power of a state to enact was taken to the
Federal Court by a back-bench UMNO Member of Parliament and
Kelantanese lawyer, Zaid Ibrahim; it was dropped in 2006 following
the Prime Minister’s intervention. Still, some experiments were per-
formed in the field of Islamic governance within the existing constitu-
tional limitations at the state level, particularly in Kelantan and
Terengganu. These initiatives related for example to restrictions on the
retail sale of food, public performances, and the implementation of a
dress code. In the end, these experiments proved either illusory as with
the hudud law, relatively trivial in their implications, or of short
duration.21
Since the 2004 election there has been an intensified struggle
around the issue of civil and sharia jurisdiction, based on the 1988
amendment to Article 121 of the constitution. While space precludes de-
tailed discussion of the many important and problematical cases dealing
with this crucial jurisdictional issue, suffice it to say that case law cul-
minated in the long-awaited decision of the Federal Court in the Lina
Joy case, which will be discussed in 11.5.
The 2008 elections have, however, turned upside down the political
configuration of Malaysia. The BN lost its two-thirds parliamentary ma-
jority for the first time ever, lost control over five state governments
(Kelantan, Kedah, Penang, Perak, and Selangor), and obtained only 49
per cent of the vote in Peninsular Malaysia. As an indication of opposi-
tion gains, the BN won only one parliamentary seat in the Federal
Territory, whereas the opposition won ten. The opposition parties now
have 82 out of 222 parliamentary seats, of which PAS has 23. Anwar
Ibrahim’s Parti Keadilan is now the largest opposition party. The BN’s
SHARIA AND NATIONAL LAW IN MALAYSIA 509

hold on government is water-thin, with many understanding these re-

sults as a rebuff for the BN amongst non-Malay voters in particular,
partly due to its failure to resist over-ambitious Islamisation of the legal
system, but also because of its failure to address other reform issues
and to take charge of the economic situation. The overall result, despite
PAS’ increased representation, is to reinforce the multi-cultural impera-
tive that lies at the roots of Malaysian society and to de-emphasise the
Islamic state issue.
In the political and legal situation in Malaysia at this moment one
can recognise the government’s efforts towards inter-ethnic reconcilia-
tion and economic development. However, the historical basis and prac-
tical consequences of this reconciliation do not seem to be accepted by
newer generations of Malaysian voters. For centuries Malaysian society
has embraced a culture of mutual tolerance, and the principle of non-
interference in religious affairs is deeply rooted. Pluralism has been a
characteristic of many Islamic societies, but Malaysia is in this respect
an outstanding present-day example because the country lies in a part
of the world, Southeast Asia, where pluralism is a penetrating fact that
deeply influences Islam along with other social phenomena.22
Yet, the position and role of sharia in national law has now become a
matter of political conflict, as government and society are dealing with
self-proclaimed followers of ‘true Islam’, such as PAS. The political si-
tuation is therefore now different from the country’s longstanding ex-
perience, the very characterisation of this experience itself becoming
contested. The 2008 elections have created new politics on both sides
of the political equation, in which Islam is just one of several issues
that appear to be profoundly intertwined. One small pointer might be
that in the aftermath of the 2008 elections a problem arose under the
State Constitution of Perak, where a DAP/PKR/PAS coalition has taken
power. The problem centred around the fact that the constitution says
that the Menteri Besar (Chief Minister) must be a Malay Muslim, but
DAP is a mainly Chinese party and as such has no credible Malay/
Muslim Members of the Legislative Assembly that might be appointed.
Several possible solutions were canvassed, but in the end, the three op-
position parties agreed that a leading PAS member, a Malay/Muslim,
would be appointed even though PAS actually had fewer seats than
either of its coalition partners. In the event this solution proved short-
lived, and a controversial change in the state government occurred due
to defections of assembly members and the head of state’s dismissal of
the Chief Minister in early 2009.
The abiding impression of the politics of this period is that much tur-
bulence has occurred but very little actual movement on the underlying
issues of religion and the identity of the Malaysian polity. As this chap-
ter is finalised in January 2010 it is reported that arsonists set fire to
510 ANDREW HARDING

eight churches over one weekend in different parts of Malaysia in inci-

dents which are attributed to yet another legal/religious conflict, over a
High Court decision allowing the use of the word ‘Allah’ in a Catholic
magazine published in Malay to describe the Christian God.23

11.5 Constitutional law

As in India, Pakistan, and Bangladesh, Malaysia is one of those coun-

tries in which constitutionalism along Westminster lines is also a legacy
of the British colonial past. The basic structure of the 1957 Constitution
is still unimpaired, although there have been many, and frequently dras-
tic, amendments. The result of this is a state termed semi-authoritarian
or quasi-democratic, but nevertheless based on the principles of the rule
of law. Interestingly, those who resist Islamisation trust the constitution,
and even though they often also criticise it, they are reluctant to initiate
any changes, as change itself is seen as a threat to their constitutional
rights and status.
Malaysia has had to engage with Islam both legally, as an important
topic to be dealt with as an aspect of the constitutional order, and philo-
sophically, as an alternative conception of what the constitutional order
might be. Four constitutional topics will be discussed below that have
influenced that role and position of Islam in Malaysia.

Islam as the religion of the Federation

Article 3 of the Federal Constitution names Islam as the religion of the
Federation. It has generally been agreed until recently (see 11.4 and be-
low) that this provision does not in any sense establish an Islamic state,
but merely provides for state ceremony. Article 3 goes on to say ‘but
other religions may be practised in peace and harmony in any part of
the Federation’.24 There is also no provision for the sharia to be a
source, much less the primary source, of legislation. Yet, according to
former Prime Minister Dr Mahathir, Article 3 is conclusive evidence of
the existence of an Islamic state.
This matter was tested in the 1988 case of Che Omar vs. Public
Prosecutor,25 in which it was argued that the enactment of a manda-
tory death penalty was contrary to Islam and therefore unconstitu-
tional. The Supreme Court (now the Federal Court) rejected this ar-
gument, holding that Article 3 was not a clog or fetter on legislative
power. In doing so, the court drew a sharp distinction between pri-
vate law, where Islamic law applies, and public law, where it does
not, and referred to the basic facts of Malaysian history to explain
this position. This position, however, has been expressly or implicitly
SHARIA AND NATIONAL LAW IN MALAYSIA 511

rejected in a number of recent cases (e.g. Kaliammal a/p Sinnasamy

vs. Pengarah Jabatan Agama Islam Wilayah Persekutuan [2006] 1 MLJ
685; Subashini a/p Rajasingam vs. Saravanan a/l Thangathoray [2007] 2
MLJ 798; also Lina Joy below).

Freedom of religion
Religious rights are constitutionally guaranteed in terms of the right to
practise and profess any religion in peace and harmony; in the prohibi-
tion of discrimination on religious grounds; in the right of every reli-
gious group to establish and maintain institutions for the education of
children in its own religion; and in the prohibition on requiring a per-
son to receive instruction in or to take part in any ceremony or act of
worship of a religion other than his own.
Article 11(1) provides that ‘[e]very person has the right to profess and
practise his religion and, subject to Clause (4), to propagate it.’ Article
11(4) allows the states to legislate for the control or restriction of the
propagation of any religious doctrine among persons professing Islam.
Thus Article 11, while safeguarding freedom of religion, draws a distinc-
tion between the practice and the propagation of religion. The states have
in fact exercised their right to enact restrictive laws as envisaged by
Article 11(4); and since the states include Penang and Melaka, former
British colonies where Islam is not even the state religion, it seems that
the restriction of proselytism has more to do with the preservation of
public order than with religious priority as such. The restriction of pro-
pagation of non-Islamic religions among Muslims and state control over
the propagation of Islamic doctrine may also serve the purpose of main-
taining social stability.
Article 11 has very much been restricted in its scope by the decision
in the abovementioned Lina Joy case, discussed in more depth below.
In this case a Muslim woman attempted to convert from Islam to
Christianity, but it was ruled she could only do so by an order of the
Syariah Court. In its decision of 30 May 2007, the Federal Court ele-
vated Article 3 to a higher status than Article 11, which provides for reli-
gious freedom.
Article 11(5) creates a further restriction on freedom of religion by
providing that Article 11 does not authorise any act contrary to any gen-
eral law relating to public order, public health or morality.26 Freedom of
religion is, however, bolstered by other provisions. Article 11(2), for ex-
ample, states: ‘No person shall be compelled to pay any tax the proceeds
of which are specially allocated in whole or in part for the purposes of a
religion other than his own.’ Article 11(3) further provides that: ‘Every
religious group has the right (a) to manage its own religious affairs; (b)
to establish and maintain institutions for religious or charitable
512 ANDREW HARDING

purposes; and (c) to acquire and own property and hold and administer
it in accordance with law.’
Similarly, Article 12(1) prevents discrimination on religious grounds
in the administration of public education and scholarships. Article 12(2)
gives every religious group the right to establish and maintain institu-
tions for the education of children in its own religion, as stated above;
the same clause adds that the States or the Federation may establish or
maintain institutions providing instruction in Islam.
Legislation during an emergency, sanctioned by Article 150, and legis-
lation against subversion under Article 149, may not interfere with free-
dom of religion, and may not interfere with the legislative powers of
the states with regard to Islamic law. Thus, primacy is given by the con-
stitution to religious rights even where the security of the state itself is
at risk. This primacy has in effect been endorsed by the Supreme Court
in Jamaluddin Othman, a habeas corpus case in which freedom of reli-
gion under Article 11 was held to override even the power of preventive
detention under the Internal Security Act. The detainee, a Malay/
Muslim who had converted to Christianity, was granted habeas corpus to
secure his release from detention, which had been effected on the
grounds that his alleged attempts to convert Muslims was a threat to na-
tional security.27

Islam as a state subject

Islam is recognised as a state subject under Schedule 9 of the constitu-
tion, in which the following competences of states are summarised:

[…] Islamic law and personal and family law of persons profes-
sing the religion of Islam, including the Islamic law relating to
succession, testate and intestate, betrothal, marriage, divorce,
dower, maintenance, adoption, legitimacy, guardianship gifts,
partitions and non-charitable trusts; Wakafs and the definition
and regulation of charitable and religious trusts, the appoint-
ment of trustees and the incorporation of persons in respect of
Islamic religious and charitable endowments, institutions,
trusts, charities and charitable institutions operating wholly
within the state; Malay customs, Zakat, Fitrah and Baitumal or
similar Islamic religious revenue; mosques or any Islamic public
places of worship, creation and punishment of offences by per-
sons professing the religion of Islam against precepts of that re-
ligion, except in regard to matters included in the Federal List;
the constitution, organisation and procedure of Syariah Courts
which shall have jurisdiction only over persons professing the
religion of Islam and in respect only of any matters included in
SHARIA AND NATIONAL LAW IN MALAYSIA 513

this paragraph, but shall not have jurisdiction in respect of of-

fences except in so far as conferred by federal law, the control of
propagating doctrines and beliefs among persons professing the
religion of Islam; the determination of matters of Islamic law
and doctrine and Malay custom.

The courts have attempted28 to clarify the way in which state and feder-
al powers are divided with regard to religion in the 1988 case of Mamat
bin Daud and Others vs. Government of Malaysia. The plaintiffs were
charged under an amendment to the Penal Code, section 298A, which
created a new offence of commission of an act on religious grounds
whose effect was likely to cause disunity or disrupt harmony between
people professing the same or different religions. They were charged
with committing an act likely to prejudice unity amongst Muslims in
that they acted as unauthorised bilal (one who gives the call to prayer),
khatib (one who gives the sermon), and imam (one who leads the
prayer) at Friday prayers. In response, the plaintiffs sought declarations
that section 298A was ultra vires Article 74 of the Federal Constitution
because in pith and substance it dealt with Islam, a state matter, and
was therefore beyond the power of Parliament to enact. On a careful
analysis of section 298A, a lengthy, complex and sweeping provision,
the Supreme Court decided, by a majority of three to two, that the acts
prohibited by the section had nothing to do with public order, a federal
matter, but were directly concerned with religion, a state matter, and
that therefore the plaintiffs were correct.

The dualistic administration of justice

The Syariah Courts administer personal status laws with respect to
Muslims, but the ordinary criminal courts have jurisdiction over
Islamic criminal matters provided for under the various Administration
of Islamic Law Enactments. Following an amendment to the constitu-
tion in 1988 and subsequent amendments, notably that of 1994,29
Article 121 provides for the jurisdiction of the High Courts, the Court of
Appeal, and the Federal Court, but adds: ‘(1A) The courts referred to in
clause (1) [i.e. the High Courts and inferior courts] shall have no juris-
diction in respect of any matter within the jurisdiction of the Syariah
Courts.’ Thus, Article 121 separates the jurisdiction of these courts
(commonly known as the ‘civil courts’) and that of the Syariah Courts.
As indicated above, since the 2004 election there has been an inten-
sified struggle around the issue of civil and sharia jurisdiction, based
on the 1988 amendment to Article 121 of the constitution. Case law30
culminated in the long-awaited decision of the Federal Court in the al-
ready mentioned case of Lina Joy vs. Federal Territory Islamic Council in
514 ANDREW HARDING

a 2-1 decision on 30 May 2007. Professor Thio Li-ann summarises the

position following this crucial decision as follows:

The majority found that the [National Registration Department]

had acted lawfully in requesting further documentary evidence
such as a statement of apostasy from the Syariah Court and in
rejecting a personal statutory declaration provided by Lina that
she was a Christian. Following Soon Singh, the majority judge-
ment delivered by Chief Justice Ahmad Fairuz opined that if a
Muslim wanted to leave the religion of Islam, this entailed the
exercise of a “right” under the context of Syariah law which had
its own jurisprudence on apostasy. He reasoned in interpreting
Article 11(1) that for a Muslim who practised and professed
Islamic Law this was to be done in compliance with Islamic law
which prescribed the method of converting into and out of
Islam. Chief Justice Ahmad Fairuz reportedly observed: “You
can’t at whim and fancy convert from one religion to another.”31
One might observe that Lina Joy’s battle to exercise free con-
science for more than a decade is hardly whimsical. Thus,
Islamic tenets were referenced in public law construction. By
reason of Article 121(1A) apostasy as a matter relating to Islamic
law lay within the exclusive jurisdiction of Syariah Courts.32

In an intellectually rigorous dissent demonstrating fidelity to constitu-

tional supremacy, dissenting judge Richard Malanjum found that the
NRD had acted without power in requiring such a certificate from a
religious authority as this was an extraneous factor in the context of
the existing Regulations. It was not the NRD’s function to ascertain
whether the appellant had properly apostasised. He found that the
NRD policy failed the test of objective reasonableness and noted that
even a reasonable policy ‘could well infringe a constitutional right’, as
in the present case, where there was unequal treatment under the law.
He argued that as apostasy involved ‘complex questions of constitu-
tional importance’, including the federal-state division of legislative
powers and fundamental rights, and noted that it was of ‘critical im-
portance’ that civil superior courts ‘not decline jurisdiction by merely
citing Article 121(1A)’. He clarified that Article 121(1A) only protected
Syariah Court jurisdiction in a matter ‘which does not include the in-
terpretation of the provisions of the Constitution’.33 In displaying a
rights protective consciousness, Malanjum HMP noted that where the
prospect of curtailing fundamental rights was implicated, ‘there must
as far as possible be express authorisation for curtailment or violation
of fundamental freedoms, which power should not be easily assumed
by implication’.34
SHARIA AND NATIONAL LAW IN MALAYSIA 515

It is not surprising that this latest decision, which turns on a particu-

lar way of interpreting Article 121(1A) as well as definition of the sub-
stantive content of religious freedom, has provoked disquiet to the point
of eliciting a statement from Prime Minister Abdullah Badawi that the
Federal Court majority decision was not politically motivated and in re-
affirming that Malaysia ‘upholds the Constitution and supremacy of the
law, otherwise, we would have become a “failed state”’.35 Nevertheless,
there is a sense that this regressive interpretation goes beyond a ques-
tion of religious choice and forbodes a ‘potential dismantling of
Malaysia’s […] multi-ethnic, multi-religious character’.36 Consequently,
certain concerned citizens consider that political recourse is now the
only option.
While the divided Federal Court decision goes some way in clarifying
the ambiguities and gaps in protection surrounding interpretations of
Article 121(1A) in relation to defining the jurisdictional ambits of civil
courts and Syariah Courts, this is unsatisfactory in terms of principle,
constitutional history and interpretive method. Further rationalisation
of the dual court system is needed.
The preceding discussion should sufficiently indicate the bifurcated
nature of Malaysian law under prevailing constitutional arrangements.
In many ways the underlying issues that divide these two legal worlds
have not until recently been explored and the engagement is slow and
very controversial, the terms of reference being themselves a matter of
disagreement.

11.6 Family law and inheritance law

While matters of civil law, including family law in general, fall under
the jurisdiction of the federal government, Islamic personal and family
law and adat law fall under the jurisdiction of the states (Harding 1996:
61-72). Muslim marriages are regulated by the Departments of
Religious Affairs of the states. Besides satisfying the marriage require-
ments of the sharia, those Muslims who wish to enter into marriage
must also complete administrative procedures and take a marriage
course approved by the State’s Department of Religious Affairs.
Even though Islamic family law matters are the most important af-
fairs in which Syariah Courts are competent to judge, there is no uni-
form Islamic family law for all Malaysian states.37 The most authorita-
tive or exemplary statement of sharia-based family law is provided by
the Islamic Family Law (Federal Territory) Enactments 1984-1994.38
This law has been called an extremely important and guiding ‘landmark
legislation’, based on the siyasah shariyyah (policy based on sharia)
(Kamali 1997: 153-154). Its provisions, although resisted from some
516 ANDREW HARDING

quarters, now form the basis of the law in most parts of Malaysia, with
the exception of Kelantan, Terengganu, and Perak (Kamali 1997: 160;
Ibrahim 1993). The law attempts to provide a better and uniform pro-
tection of property rights of married Muslim women. The law also aims
to act as a model to be followed by the various state laws in ensuring
that a Muslim woman’s right to divorce and her subsequent rights relat-
ing thereto are regulated more fairly and consistently.39

Polygamy and registration of marriages

The Islamic Family Law Enactments 1984-94 determine in section 23(4)
that polygamy is permissible according to Islamic tradition, albeit depen-
dent on judicial approval. A Muslim man who desires a polygamous mar-
riage must satisfy at least five conditions: the intended marriage must be
‘reasonable and necessary’; the man must possess enough financial re-
sources to support his family; his current wife must give her permission;
the man must be capable of treating his wives equally; and the intended
marriage may not harm the current wife or wives.
Despite these limitations, it must be noted that the regulations in var-
ious states have largely hollowed out the intent and purpose of the origi-
nal 1984 law. The decision to approve of a polygamous marriage is
made by the Muslim judge, the khadi. The Islamic Family Law
Enactment is not very detailed in Kelantan and no mention is made of
punishing polygamy lacking approval from the judge. In Terengganu, a
similar regulation applies (Ahmad Ibrahim 1993: 299). The regulation
in Perak provides that no person may enter into another marriage as
long as the current marriage endures, unless a prior written approval
from the judge is given (Kamali 2000: 65). In practice, judges presum-
ably focus mostly on the question about whether the man can support
his new wife (Kamali 2000: 162).
A 1994 law that amends the 1984 law allows for polygamous mar-
riages without the approval of the judge, provided the marriage is in ac-
cordance with sharia; it leaves it up to the judge to decide whether or
not to register the marriage. The disappearance of the prohibition of re-
gistering polygamous marriages lacking the judge’s approval has turned
back the clock, in that the inequality between sexes has increased.40
This trend appears to be confirmed in 2002 in the northern state of
Perlis. There, the authorities loosened the procedural and administra-
tive requirements for polygamous marriages and permitted men to en-
ter into a polygamous marriage without requiring permission from the
first wife (Kent 2003).
In Malaysia under the Law Reform (Marriage and Divorce) Act 1976
every non-Muslim marriage requires registration; non-registration is a
criminal offence, but does not render the marriage void or voidable. For
SHARIA AND NATIONAL LAW IN MALAYSIA 517

Muslims the registration of marriages is mandatory based on the 1984

law, in which neglecting to register a marriage is also a criminal office,
punishable with a fine and/or detention.41 A non-Muslim man who
wishes to marry a Muslim woman must first convert to Islam.42

Divorce – unilateral and by mutual approval

The talaq or unilateral divorce by the husband is implicitly recognised
by law, under the condition that he fills out a set form in which he
mentions his reasons and that an attempt at reconciliation has been
made. Section 124 of the 1984 law provides that pronouncing the talaq
without the judge’s approval is punishable, but it does not mention
whether the marriage is subsequently dissolved or not (Kamali 2000:
86-87). Section 55(a) of the 1984 law as modified in 1994 holds that the
judge must give approval after the talaq that has been enunciated with-
out the judge’s prior approval. If the judge then gives his approval, the
talaq is considered to be in accordance with sharia. The judge must,
however, make attempts at reconciliation for a maximum period of six
months. If the judge then decides that there is an irreconcilable dispute
in the marriage, the husband will be asked to pronounce the talaq, after
which the divorce is registered.
In 2003 a remarkable case caused some fierce discussion. The occa-
sion was a judgement by a Syariah Court that found a talaq in the form
of an SMS message to be an adequate form of announcing a divorce.
The religious advisor Abdul Hamin Othman agreed with the judge-
ment, arguing that an SMS message is clear and unambiguous and
therefore valid according to sharia law. The political elite and Islamic
fundamentalists, on the other hand, fiercely opposed the judgement.
According to Prime Minister Mahathir, it was in contradiction with
Malaysian culture and the spirit of sharia law.43
Divorce based on mutual approval, or khul‘, takes place when the wo-
man starts the procedure by returning the dowry. In addition, section
52 of the 1984 law permits divorce by the woman on the following
grounds: the husband is missing for more than one year; she has been
living for three months without financial support; the husband is sen-
tenced to prison for three years or longer; he does not fulfil his marital
duties for one year; chronic impotence, but only in case the woman was
not aware of this fact at the time of the marriage; a mental disease last-
ing longer than two years, leprosy or a transmissible sexual disease;
when the woman opposes the marriage because it was effected by her
father or grandfather before she had reached the age of sixteen, as long
as the woman is under the age of eighteen and the marriage is not con-
summated; cruel treatment; the husband refuses sexual intercourse for
four months; illegality of the consent to marry one of the women (for
518 ANDREW HARDING

example because the consent was obtained by force or based on fallacy);

or any other recognised ground for dissolution or nullification, such as
talak takliq (breach of marriage contract) (Kamali 2000: 95-96). For
non-Muslims a divorce is only possible when proclaimed by a compe-
tent court.44
Despite their acknowledgment that the Islamic Family Law (Federal
Territory) Enactments 1984-94 comprise enlightened legislation, the
Sisters in Islam handed in a list of complaints and reform proposals to
the government in 1997.45 The complaints concerned matters such as
unnecessary delay when a woman asks for divorce (whereas the man
can obtain a divorce immediately when he pronounces the talaq); unne-
cessary delay in mediation procedures when the husband does not ap-
pear; the lack of uniformity in the laws of different states, allowing hus-
bands to choose the state that best suits their case;46 attempting to
evade the obligations of spousal support by moving to another state;
and a lack of well-educated judicial and legal personnel, which presents
an obstacle in the administration of justice and disproportionately af-
fects women as they are most often the victims.
A Muslim woman whose husband unjustly divorced her can ask for a
payment during the three menstrual cycle waiting period following di-
vorce (idda) and gift on divorce payment (muta) periods. The judge de-
termines the sum of the payment according to the 1984 act. Income or
property obtained during the marriage through joint efforts is divided
by the judge according to division of joint property (harta sepencarian,
under adat). The judge can also divide income obtained through indivi-
dual effort, by taking into consideration the extent to which the other
party, for example through household work and care for the family, has
contributed to the building of that income.

Inheritance
With regard to inheritance issues, Muslims follow uncodified Islamic
law, based on the general rule that women receive half the share of
what men in the same position would. In order to create a fair distribu-
tion of inheritance among all family members, it is usual in a will to
follow the general rule of Islamic law that the testator does not have
free possession of one third of his inheritance. Meanwhile adat, includ-
ing matrilinear adat, is also still followed in inheritance matters.

11.7 Criminal law

The regular courts for criminal cases have jurisdiction over all acts pun-
ishable under the Penal Code, including acts which would be
SHARIA AND NATIONAL LAW IN MALAYSIA 519

punishable if Islamic criminal law were applied. The Syariah Courts

have some limited criminal jurisdiction, the precise scope of which is
unclear given that the hudud laws have not been pronounced upon con-
stitutionally. In general one could say that their criminal jurisdiction
probably extends only to offences which are incidental to the Syariah
Court’s jurisdiction, e.g. failure to comply with a court order. However,
some offences, such as khalwat (close proximity between unmarried
persons of the opposite sex), are purely Islamic and are punishable only
in the Syariah Court, as indicated below. As stated above, state laws
make the spreading among Muslims of religious doctrines other than
Islamic doctrines a punishable offence. And in the state of Perak, it is
forbidden for non-Muslims to use a word from a list of 25 important
Islamic words. The state has also forbidden the teaching of Islamic doc-
trine without written approval or in a manner that is not deemed to be
in accordance with Islamic law. In some states it is forbidden to publish
an Islamic book without permission. Additionally, state law prohibits
khalwat. The Syariah Criminal Offences (Federal Territory) Act 1997
contains radical, but not atypical, criminal offences that are far-reaching
in terms of restricting constitutional rights on freedom of religion and
freedom of expression.47 There is a religious police force which con-
cerns itself specifically with the enforcement of rules such as these. As
is explained above, hudud law is on the statute book in two states, but is
not in practice enforced, is opposed by the Federal Government, and is
probably unconstitutional. In one episode in 2005, which led to great
public concern, the religious police raided a discotheque in Kuala
Lumpur, isolated all the Muslim young men and women dancing there,
including a well-known pop singer, and arrested them for being inde-
cently dressed. They were later released and Prime Minister Badawi
publicly stated that this incident should not have occurred.

11.8 Other areas of law, in particular economic law

The Islamic Banking Act of 1983, which emerged from the dakwah
(‘prayer’) movement of the 1970s and gained influence especially since
the creation of the Islamic Development Bank, forms the core of
Islamic banking in Malaysia. The Malaysian Central Bank derived from
this law its competence to supervise the Islamic banks. The
Government Investments Law of 1983 granted the government compe-
tence to hand out state debentures on the basis of sharia principles.
The subsequent creation of Bank Islam Malaysia Berhad (BIMB) was
described by the Minister of Finance at that time as the first step in the
government’s endeavour to give Islamic values a place in the economic
and financial system of the country (Razaleigh 1982). In 1991 the
520 ANDREW HARDING

Islamic Religious Council for the Federal Territories founded the

‘Centre for Levying Zakat’, with the task of informing the Muslim pub-
lic of the obligation to pay Islamic taxes (zakat) and regulating the col-
lection thereof. The two above-mentioned laws exist alongside legisla-
tion for the conventional banking system. Since 1993, when the ‘pro-
gramme for interest-free banking’ was introduced, the existing banks
have been encouraged to offer Islamic banking services in accordance
with sharia. In 1997 the central bank also created the National Shariah
Advisory Council (for the Islamic Banking System and Insurances), the
highest sharia authority in this field in Malaysia.

11.9 Obligations with respect to human rights

The constitution contains a bill of rights which follows the standard pat-
tern of 1950s de-colonising constitution-drafting and bears a strong si-
milarity to its Indian equivalent. However, both religious rights and civil
liberties, such a freedom of speech, are hedged around with loosely pre-
scribed exceptions and provisos. For example Article 11, while allowing
freedom of religion, restricts the propagation of non-Islamic religions
among Muslims. The state also assumes control over the propagation of
Islamic doctrine, and restrictions on apostasy for Muslims are regarded
as constitutionally valid and indeed serving the purpose of maintaining
social stability. The problem with these laws is that they are contrary to
the spirit of freedom of religion and equality before the law, and place
the adherents of other religions (or Muslims who hold to unorthodox
religious tenets) at a disadvantage as compared with Muslims (or ortho-
dox Muslims). Thus, in the long term, the maintenance of these restric-
tions may well have the effect of undermining the overarching principle
of religious freedom, which, as may be seen, is a fundamental right that
has historically existed at a higher level, in practice, than other funda-
mental rights. While Malaysia has not signed any of the international
human rights covenants except the CRC and CEDAW, the latter of
which has resulted in the inclusion of gender discrimination as an im-
permissible form of discrimination under Article 8 of the constitution,
which deals with equal protection, it has clearly developed its own dis-
tinctive approach to human rights.48 The language of cultural relativism
‘Asian values’ is never far from the lips of those in power when human
rights issues are being addressed (Thio 1999; Langlois 2001).
Having said this, there have been some positive developments in re-
cent years. In 1999 the National Human Rights Commission Act was
passed, setting up the NHRC as a monitoring body without powers to
deal finally or definitively with human rights concerns. This at least en-
sures a forum in which concerns can be raised and matters investigated
SHARIA AND NATIONAL LAW IN MALAYSIA 521

(Whiting 2003). Moreover, the Malaysian Bar has been unflinching over
several decades in its determination to point out human rights failings
and breaches of the rule of law and judicial independence, usually in ef-
fect leading the civil society charge against authoritarian government.
While one can observe something of a split along religious lines between
Muslim and non-Muslim lawyers, the more remarkable fact is the main-
tenance of long-term solidarity in spite of such internal cleavages.49

11.10 Conclusion

The constitutional balance can be said to have reverted in some ways to

where it was before the tumultuous events following the economic cri-
sis of 1997. The 1999 election result, an apparently conservative elector-
al reaction to those events, appeared to change the nature of the consti-
tutional debate in Malaysia. The 2004 and 2008 election results appear
to indicate that an Islamic state of the kind that PAS seeks to create is
unacceptable to the generality of Muslim as well as non-Muslim voters.
However, the issue of the Islamic state has re-emerged in the form of a
struggle waged in the courts to define the respective jurisdictions of the
civil courts and Syariah Courts.
With this caveat, after the dust of the intense political struggle of
1997-2004 had settled, there seemed, at least until the 2008 elections,
to be little disturbance of the inter-ethnic, inter-religious, and political
alignments and understandings that have obtained since 1957. To put
the position simply, the liberal-democratic order implied in the 1957
Constitution has been partially maintained, but with two concessions:
exceptional powers to the executive, which embodies Malay nationalism,
inter-ethnic accommodation, and economic development, at the expense
of democratic freedoms; and the privileging of Islam as a religion, and
Malay/Muslims as a race (bumiputera) over other races (non-bumiputera)
and other religions, at the expense of the democratic principle of equal-
ity before the law. Both of these concessions are, however, both proble-
matical and increasingly contested.
If Malaysia manages to reach a new constitutional settlement accepta-
ble both to Islamists and reformasi supporters (these are not of course
mutually exclusive categories) it will have set a precedent of great inter-
est and importance in the Islamic world and beyond. The success of the
legal cultures of Southeast Asia over hundreds of years in absorbing
and melding various legal worlds and concepts indicates that a syncre-
tic, creative, and peaceful solution to the problem of Islam and constitu-
tionalism is by no means impossible.50 At present it seems as though
such an ideal solution is fraught with both political controversy and in-
tellectual confusion. Nonetheless, to describe the situation set out in
522 ANDREW HARDING

this report as a ‘clash of civilizations’, while not without resonance in

the Malaysian situation, would ignore the fact of peaceful cohabitation
of Islam and other conceptions of state and law for more than one hun-
dred years.
The apparent contemporary polarisation along religious lines, ren-
dered complex by the new politics of 2008 and beyond, should not ob-
scure this history. There have been and continue to be significant
skirmishes at the borders, which are expressed principally in terms of
legal struggles over territory or ‘jurisdiction’. These skirmishes seem
likely to veer towards an even more intense conflict. There are also,
however, far-reaching compromises on both sides: Islam largely con-
cedes, in practice and for the time being, that Islamic law is not funda-
mental in the constitutional order, while the constitutional order con-
cedes that strict equality for Muslims and non-Muslims will not apply.
But which society does not have such skirmishes and compromises,
and are they not evidence of an underlying but significant degree of tol-
erance and acceptance of difference?
The Malaysian example is certainly one of conflict, but conflict has
existed (apart from the May 13 riots of 1969) as purely political and liti-
gious, not violent. Significantly, whereas the 1969 election resulted in
ethnic rioting, in 2008, electoral results even more adverse to the gov-
ernment were accepted on all sides without any such incidents.
Malaysia is also an example that shows the possibility of a tolerant, pro-
gressive, pragmatic, moderate, and consensus-based, if not always
strictly democratic or egalitarian, Muslim-led government; and the sus-
tained viability, over a century, of a dualistic legal system. The constitu-
tion and the institutions of the common law have indeed provided the
means whereby accommodation between two fundamentally contradic-
tory conceptions of legality has been achieved.

Notes

1 Professor of Asia-Pacific Law, University of Victoria, B.C., Canada. The author wishes
to thank Ng Wei, David Chen, and Nadia Sonneveld for their support in research
and their suggestions, as well as Jan Michiel Otto for his extensive and helpful com-
ments and assistance.
2 This chapter uses the word ‘Malaysia’ to refer to the present-day Federation of
Malaysia. The term ‘Malaya’ is used to refer to the Malay States and the Federation of
Malaya in the period before Malaysia was created in 1963. The term ‘Malay’ is used
for the language and ethnic group of Malay/Muslims living in Malaya/Malaysia.
3 See also Wilkinson 1970: 6 et seq.
4 Adat perpatih was the democratic adat law that was brought to the Malay state of
Negeri Sembilan by immigrants from Minangkabau, West Sumatra. The more com-
mon form of adat was known as adat temenggong. According to adat perpatih, ances-
tral land passes via the female line (i.e. from mother to daughter). According to
SHARIA AND NATIONAL LAW IN MALAYSIA 523

tradition, the adat temenggong, which prevailed in other parts of Malaya, stems from
the same matrilineal community of Minangkabau, but Hindu influences in this case
changed adat to the extent that it now refers mostly to customs based on a patrilineal
system. See also 11.2.
5 I say in general since the relation between adat and Islamic law varied (and still var-
ies) a lot, depending on the state in question. In the state Negeri Sembilan, for exam-
ple, adat played (and still plays) an important role, while Islamic law is more impor-
tant in the state of Kelantan.
6 Singapore, Penang, and Malacca formed the so-called Straits Settlements between
1842 and 1941.
7 It is not easy to precisely establish the origins of Malaysia’s Syariah Courts. Peletz ar-
gues that ‘their precedents and genealogies qua religious symbols and judicial insti-
tutions can be traced back to the early modern period (which extends from the fif-
teenth to the eighteenth centuries)’ (2002: 26).
8 This stipulation, the current Article 3 of the constitution, was originally not part of
the design made by the Reid Commission but was later inserted during the review
process in 1957.
9 Mohammad Hashim Kamali comments that ‘the prevailing climate of opinion in the
judiciary and elsewhere in the higher echelons of Government has not shown any de-
cisive shift of policy to alter the original perception of the secular state as was ex-
pressed in the constitutional debate fifty years ago’ (Kamali 2000: 35).
10 While the Chinese, and to a certain extent the Indians, controlled business life and
the free professions, quotas were introduced to allow for positive discrimination fa-
vouring Malays. In the 1957 Constitution explicit mention was made of this exception
to the principle of equality before the law (Art. 8(5), and more generally in Chapter
X: Government Services).
11 Notably, the Malaysian Chinese Association and the Malaysian Indian Congress.
12 Hereafter there will be some generalisation because it would be too much to distin-
guish and cite all the different stipulations of fourteen jurisdictions for the purpose
of this country study.
13 The reference to this school nowadays has consequences especially for fatwa jurisdic-
tion, although the Syariah Courts in practice also follow the doctrines of the Shafi’ite
school. Even with fatwas it is possible to consider principles of other schools, namely
when this is done for the general interest. A fatwa can also involve adat and in some
states the Council by law has to take adat into consideration when fulfilling its func-
tion. Fatwas are particularly important when it comes to determining the duties of
Muslims. Compare Ahmad Ibrahim (2000).
14 Kamali (2000: 12-13, 64-65) suggests that a possible reason for the ‘disobedience’ of
these states in adopting modernised family law legislation conforming to the origi-
nal federal law of 1984 can be found in the fact that this law was primarily modelled
after the Hanafi Madzhab of Pakistan and India, while most Malaysian states profess
the Shafi’ite tradition. Ibrahim and Joned (1995) suggest that the fact that making
Islamic laws is the prerogative of individual states has resulted in a lack of unifor-
mity, despite attempts made by the federal government to unify the interpretation
and the application of Islamic family law.
15 Compare Harding (1996). During this period the government coalition also retained
the required two-thirds of the majority to amend the constitution.
16 Two members of the opposition also voted for the bill. For further analysis and com-
ments on the hudud issue, see Kamali (1995). This book is summarised in a more ac-
cessible manner in Kamali 1998: 203. Compare Imam 1994: xxix; Ibrahim 1993: 14.
17 An interesting question arises here: what is the basis of political legitimacy in
Malaysia? Is it traditional/Islamic, charismatic, legal-rational, or economic/
524 ANDREW HARDING

pragmatic? One could say that all these aspects are important for legitimacy or per-
haps also that, cynically, those who are in power will use whichever aspect is most
suitable in their situation. But it is undoubtedly true that the traditional/Islamic basis
of legitimacy has long since been detached from the traditional monarchy.
18 CNN, 18 July 2002, see http://asia.cnn/2002/World/asiapcf/southeast/06/18/malay-
sia.mahathir/, consulted September 2, 2002. His successor as Prime-Minister,
Abdullah Ahmad Badawi, made similar comments during the election campaign of
March 2004.
19 Ironically enough, commentators attribute the political survival of Mahathir, who
took over power in 1981 as an advocate of Malay rights, and the BN in the elections
of 1999 to the votes of non-Muslims, which had the effect of compensating for the
loss of Muslim votes to the PAS and other opposition parties. Non-Muslims voters
must have realised that a vote against the BN could have led to the imposition of an
Islamic state by a PAS-led government, although the cooperation of non-Muslims
and non-Malay parties of the ‘Barisan Alternatif’ opposition coalition would have
been necessary to actually gain power.
20 The Sunday Times, Singapore, 4 June 2000. The statutes of the party in the mean-
time have been amended in order to give the traditionalists more power at the state
level. The PAS has also started a debate about the role of women in politics.
21 Although it appears to be an anomaly that Islam is an issue of the states within the
federal structure of a country with a Muslim majority and where Islam is also the re-
ligion of the Federation, representatives of the PAS have admitted in a conversation
with the author that the possibility to experiment and also eventually make mistakes
at state level was actually an important acquisition.
22 Hefner & Horvatich (1997). It is entirely correct to refer to the ‘Islam of Java’, ‘Aceh’
or ‘Malaysia’. Compare Kamali 2000: 3.
23 See http://english.aljazeera.net/news/asia-pacific/2010/01/2010110225838805341.
html, dated 11 January 2010.
24 A prominent Muslim jurist told the author that the word ‘but’ in Article 3 is consid-
ered to be insulting towards Islam and that it must actually be read as ‘and there-
fore’. Compare also Kamali 2000: chap. 3.
25 [1988] 2 MLJ 55. See, however, the contrary more recent case of Meor Atiqulrahman
bin Ishak & ors vs. Fatimah & ors [2000] 5 MLJ 375 and the discussion and citations in
Bari & Shuaib 2006: 5-10.
26 This clause came up in the case Halimatussaadiah vs. Public Service Commission MLJ
[1992] 1: 513, in which it was declared that a disciplinary rule of the government that
prohibited female employees from wearing the (purdah) (clothing covering the entire
body), because it made personal identification impossible, was constitutional. For
more comments and analysis, see also Zakaria 1993: xxv.
27 Minister for Home Affairs vs. Jamaluddin bin Othman, Supreme Court Review (SCR)
[1989] 1: 311; [1989] 1 MLJ 369, 418.
28 See Mamat bin Daud and Others vs. Government of Malaysia [1988] 1 MLJ 119; 1988
LRC (Const) 46.
29 Constitution (Amendment) Act, A885 of 1994, creating the Court of Appeal. See, also
on this article, Jusoh 1991; Ibrahim 1989a: 1; Ibrahim 1989b: xvii.
30 Space precludes the coverage in detail of several important and highly controversial
cases, especially Shamala’s and Subashini’s cases: Shamala a/p Sathiyaseelan vs. Dr
Jeyaganesh a/l C Mogarajah [2003] 6 MLJ 515; Shamala a/p Sathiyaseelan vs. Dr
Jeyaganesh a/l C Mogarajah [2004] 2 MLJ 241; Shamala a/p Sathiyaseelan vs. Dr
Jeyaganesh a/l C Mogarajah [2004] 2 MLJ 648; Shamala a/p Sathiyaseelan vs. Dr
Jeyaganesh a/l C Mogarajah [2004] 3 CLJ 516; Subashini a/p Rajasingam vs. Saravanan
a/l Thangathoray [2007] 2 MLJ 798; Subashini a/p Rajasingam vs. Saravanan a/l
SHARIA AND NATIONAL LAW IN MALAYSIA 525

Thangathoray [2007] 2 MLJ 705; Subashini a/p Rajasingam vs. Saravanan a/l Thanga-
thoray [2007] 4 MLJ 97; Subashini a/p Rajasingam vs. Saravanan a/l Thangathoray
[2008] 2 CLJ 1. See, however, also the case of Indira Gandhi, reported at http://
www.malaysianbar.org.my/legal/general_news/conversion_case_indira_gandhi_gets_
custody_of_her_3_children.html. For further discussion, see Whiting (2008) and
Harding & Whiting (2010).
31 Hamid & Azman 2007.
32 Thio 2007; Lina Joy 2007, text in Bahasa Melayu, see http://www.malaysianbar.org.
my/index.php.
33 Malanjum 2007, para.s 64, 65, 68.
34 Id., para. 84.
35 The Sun 2007.
36 Beech 2007, quoting Malik Imtiaz Sarwar.
37 In a letter from the Sisters in Islam to Prime-Minister Mahathir of August 1997 it was
noted that ‘Malaysia is the only country in the Muslim world in which every state has
independent jurisdiction with regard to religious affairs, which leads to inconsistency
and contradiction in the law, interpretation, and implementation’, cited in Kamali
1997: 155-156.
38 The Federal Territories comprise Kuala Lumpur, the administrative centre Putrajaya,
and the island of Labuan.
39 For non-Muslims, the Law Reform (Marriage and Divorce) Act 1976 unifies the law
with respect to marriage and divorce issues with effect from 1 March 1983. The 1976
act moreover introduces reconciliation organs; these must attempt to solve within six
months marriage problems brought before them by people who wish to divorce.
Section 3(3) explicitly states that the law is not applicable to ‘a Muslim or any other
who is married according to Islamic law nor to a marriage in which one of the par-
ties professes Islam’. Exemptions exist for natives of the states of East Malaysia,
namely Sabah and Sarawak, or for aborigines of West Malaysia whose marriages and
divorces are regulated by native customary law or aborigine customary law. Compare
section 3(4); para. 384 of the 2004 CEDAW report concerning Malaysia; also 1976
Act, sections 55, 106.
40 In their joint letter to Prime-Minister Dr Mahatir, the Sisters in Islam and the
Association for female jurists declared that ‘the amendments made by several states
to the original law have resulted in the man having the exclusive right to decide
whether or not a polygamous marriage will take place.’
41 See part III on the registration of marriages of Muslims.
42 See myGovernment: The Government of Malaysia Official Portal, the part about mar-
riage: accessible via http://www.gov.my/MyGov/Home/.
43 See http://timesofindia.com/articleshow/104860.cms.
44 A ground for divorce for a marriage between two non-Muslims would be conversion
to Islam of one of the spouses during the marriage (1976 Act section 51). Conversion
of a husband would have far-reaching legal implications for the woman who does not
convert herself, particularly in the context of polygamy, for the right to maintenance
and inheritance, and – in the worst case – divorce. The woman does have the right to
request a divorce, on the condition that the petition must be started within three
months after the conversion. In April 2004, in the case of Shamala a/p Sathiyaseelan
vs. Dr. Jeyaganish a/1 C. Mogarajah (Muhammad Ridzwan bin Mogarajah), of 13 April
2004, the court declared itself incompetent to adjudicate custody over the children of
a woman whose husband converted himself and the children to Islam.
45 See Reform of the Islamic Family Laws and the Administration of Justice in the
Syariah System in Malaysia. The memorandum was presented to the Malaysian gov-
ernment in March 1997. The proposal for the memorandum was formulated and
526 ANDREW HARDING

approved during the national workshop under the same name on 4 January 1997;
the information is accessible via: http://www.muslimtents.com/sistersinislam/mem-
orandums/04011997/htm.
46 See Aishah Abdul Rauf vs. Wan Mohd Yusof Wan Othman [1990] 3 MLJ ix. In this case
the Syariah Court of Appeal of Selangor rejected a husband’s request to marry a sec-
ond woman because he could not sufficiently prove that his decision was ‘reasonable
and necessary’. Not long after, the man simply went to the state of Terengganu to
marry his second wife there.
47 This law contains, among others, the following punishable offences: mistakes in wor-
ship (s.3), propagation of false doctrines (s.4), propagation of non-Islamic doctrines
among Muslims (s.5), contempt or public disdain of religious authority (s.9), un-
authorised giving of religious education (s.11), propagation of opinions that contradict
fatwas (s.12), publications of religious writings that are in conflict with Islamic law
(s.13), and even faults in fulfilling the obligation of Friday prayer (s.14) and encoura-
ging others to fail to fulfil religious duties (s.17).
48 It must be noted here that although the constitution assumes equality of sexes in Article
8 and CEDAW is one of the few international human rights conventions ratified by
Malaysia, the country has deviated from these stipulations with regard to testamentary
ownership and the appointment of sharia judges, muftis, and imams. See Thio 1999.
49 Harding & Whiting 2010. This was written as a contribution to the American Bar
Foundation’s project on political liberalism, for which further information can be
found at http://www.americanbarfoundation.org/research/project/32.
50 Compare An-Na’im 1999; Kamali 2000: chap. 15. This approach is reflected in the
published work and the speeches of Anwar Ibrahim. In The Asian Renaissance
(Singapore, Times Publishing, 1996), Anwar frequently refers to the necessity to pro-
mote democracy, civil society, and righteousness, whereby he uses an impressively ex-
tensive series of authors, Muslim as well as non-Muslim, Eastern as well as Western.
Although Anwar does not answer specific constitutional questions, there can be no
doubt that that he is an outspoken supporter of independence of the judiciary, de-
mocracy, and human rights; and there can also be no doubt about his ideas that these
concepts are a significant part of the Asian traditions, including Islamic traditions.
Furthermore, he fiercely rejects Eastern despotism. Recently it had become clear that
the Parti Keadilan Malaysia (the Justice Party), led by Anwar’s wife, Wan Azizah
Ismail, has a principally constitutionalist agenda. Anwar’s opinions probably differ
from Western constitutionalism only in so far as he believes (and perhaps even
wrongly) that constitutionalism is hostile with respect to religion. It could well be
possible, and several commentators have already pointed this out, that the person
who would be best capable of finding a solution to the contradiction between Islam
and constitutionalism, is Anwar. Farish Noor (South, October 2000) even refers to
‘the phenomenon of the reformasi-Islamisasi’ and emphasises the possible explosive
connection between these two concepts.

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12 Sharia and national law in
Mali

Dorothea Schulz1

Abstract

The Republic of Mali is a multi-ethnic nation with an overwhelm-

ing Muslim majority and a constitution embodying a parliamen-
tary system, multi-party democracy, and freedom of religion. Its le-
gal infrastructure is strongly shaped by the legacy of the French
Civil Code and the French principle of secularism (laicité) and
does not make room for any incorporation of Islamic law into the
constitutional order.
Islamic law has never been strongly represented or institutiona-
lised in any colonial or postcolonial state law. Its traces have be-
come weaker, even if Islam, as an idiom of community building,
has gained a new momentum since the late 1970s and a greater
public prominence after the political liberalisation of the early
1990s. Mali’s current positive legal system reflects several dilem-
mas and legacies deriving from a longer-standing legacy of colo-
nial dual administration, from the particular power constellation
between Muslim forces and the state, and finally, from the auto-
cratic political heritage of its recent postcolonial history.
Mali’s present-day legal system does not comprise a separate
Islamic judicial sector, and sharia does not figure in any area of
codified law. Nor did sharia play a role in the development or
modification of Malian law. At the same time, democratisation
and the empowerment of secularist forces within the government
since the early 1990s has not put an end to Islam’s imminent
 political force. At the level of positive law, however, the secular
character of the constitution and of political parties is expressly
maintained.

Table of contents
12.1 The period until 1920. The coexistence of diverse
politico-legal orders – a situation disrupted by French
colonial administration 531
Precolonial centralised polities and diverse forms of local
legal practice 531
The early days of French colonial administration 532
12.2 The period from 1920 until 1960. The spread of Islam
in the face of colonialism 533
The consolidation of colonial rule 533
The times of the independence struggle 535
12.3 The period from 1960 until 1985. From Keita’s socialist
single-party rule to Traoré’s military regime 536
1960-1968: Keita’s socialist single-party rule 536
1968-1985: Traoré’s military single-party rule 539
12.4 The period from 1985 until the present. The new appeal
of an Islamic idiom of political and social critique 542
Liberalisation and multi-party democracy under Konaré
and Touré 542
General tendencies of the past ten years 543
12.5 Constitutional law 544
12.6 Personal status and family law 545
12.7 Criminal law 546
12.8 Other areas of law 547
12.9 International conventions and human rights 547
12.10 Conclusion 548

Notes 549
Bibliography 552
SHARIA AND NATIONAL LAW IN MALI 531

The Republic of Mali gained independence from France in 1960 and

presently counts around 12.6 million inhabitants. Various ethnic groups live
in Mali, including the Mande (Bamana, Maninka, Soninke) (50%), Peul
(17%), Voltaic (12%), Songhai (6%), and the Tuareg and Moor populations
(10%). Ninety per cent of Malians are Muslim, and nine per cent of the
population professes an indigenous religion. Only one per cent of the
population is Christian. French is the official language, but 80 per cent of the
Malian population speaks Bamanakan and/or one of several other African
languages.

(Source: Bartleby 2010)

12.1 The period until 1920

The coexistence of diverse politico-legal orders – a situation
disrupted by French colonial administration
Precolonial centralised polities and diverse forms of local legal practice
Throughout the nineteenth century, the area of today’s Mali was struc-
tured by various forms of politico-legal organisation. Some regions were
under the tutelage of centralised polities. Although these polities are of-
ten referred to as ‘kingdoms’ (in scholarly publications as well as in lo-
cal parlance), they differed from medieval European kingdoms with re-
spect to their administrative and political organisation. They were based
primarily on warfare, trade, and on the redistribution of booty and
tended to be characterised by a high degree of instability. Royal and no-
ble lineages and the principle of inherited leadership existed, but were
often challenged by contending warrior entrepreneurs. Some of the rul-
ing lineages were closely affiliated with lineages of Muslim scholars
and traders, and had themselves adopted a Muslim identity. The major-
ity of the population, in contrast, continued to subscribe to non-Islamic
religious practices and belief systems.
Areas outside these centralised polities were by and large constituted
by conglomerations of relatively autonomous village communities,
which formed temporary and strategic military alliances against foreign
aggressors. Here again, only few families considered themselves
Muslim.
Starting in the late eighteenth century, populations in the southern
triangle of contemporary Mali witnessed the emergence of a number of
Islamic theocratic states. Among them were the empire of Macina
(founded in 1810 and ruled by Sekou Amadou from 1755-1849) and the
Tukulor empire of El Hadj Umar Tall (1794-1864), who, after his return
from Mecca to his home base in the Futa Tooro (eastern Senegal),
532 DOROTHEA SCHULZ

sought to create a warrior empire, which, however, due to the growing

presence of the French colonial powers, never achieved a high degree of
institutionalisation and stability. From 1852 onwards, El Hadj Umar gra-
dually occupied south eastern Mali, which until then had been under
the control of the empires of Kaarta, Macina, and Segu. The expansion
of these theocracies did not bring with it a mass conversion to Islam.
Widespread islamisation occurred only in zones under the immediate
influence of these empires.
As a consequence of the varying degrees in islamisation, locally di-
verse legal orders and practices co-existed in many areas. In the north-
ern regions, Islamic law (Maliki school of jurisprudence) was predomi-
nant in and near the urban centres such as Gao and Timbuktu where
Muslims made up the majority of the population. In most regions of
the French Sudan (Soudan Franςais), in contrast, customary practices of
establishing ‘law and order’ were based exclusively on oral tradition, re-
latively fluid, and situationally contingent. Because Muslim commu-
nities existed as islands within non-Islamised populations, legal practice
was characterised by a selective combination of Islamic and non-Islamic
normative orders. This selective combination of normative orders was
facilitated by the fact that only few people were literate and most nor-
mative principles were passed down orally. It is likely that many inter-
pretations of Islamic law were inflected by customary legal principles.
Only in towns where families of Muslim religious scholars had a politi-
cal weight was this intermingling of different normative orders miti-
gated by the interventions of religious experts who watched over the
correct application of Islamic legal conceptions.

The early days of French colonial administration

Earliest contact by the French colonial powers with the area of today’s
Mali dates back to the fifteenth century. But, actual colonisation of the
region started only in the nineteenth century, in the context of a grow-
ing struggle among European powers over overseas colonial territories.
Moving from the Senegalese coast to inner zones of Sahelian West
Africa, French colonial troops gradually occupied a region that later was
to constitute a major part of the Afrique Occidentale Française (AOF).
French colonial occupation of the area started in the late 1850s and
ended in 1892, with the subjection of El Hadj Umar’s son Ahmadou
Tall. In 1892, the ‘French Sudan’ (Soudan Franςais), the area comprising
present-day Mali, was declared part of the French colonial empire; in
1902, it was incorporated into the administrative unit of ‘Sénégambie et
Niger’ and, later, in the period between 1904 and 1920, into the ‘Haut-
Sénégal et Niger’.
SHARIA AND NATIONAL LAW IN MALI 533

12.2 The period from 1920 until 1960

The spread of Islam in the face of colonialism

The consolidation of colonial rule

The name ‘French Sudan’ (Soudan Franςais) was reintroduced for the
area of today’s Mali in 1920 and became a separate administrative unit
in 1937. Colonial administration never affected local politico-legal and
social structures to the same extent as in the case of the coastal French
colonial territories. This is due to the fact that, apart from the commer-
cial rice cultivation programme in southern Mali (region of Segu), colo-
nial exploitation of natural resources was almost non-existent.
The majority of the Malian rural population, in particular in the
South, converted to Islam only after the 1920s, that is, during the colo-
nial period. The gradual conversion to Islam was facilitated by several
factors. For a long time, Muslim faith had been associated with an eru-
dite, cosmopolitan, and economically successful identity. Individuals
and families critical of colonial occupation came to equate Islam with a
modern, progressive orientation that constituted an alternative to the co-
lonial normative and cultural order. The modernising, cosmopolitan
outlook of Islam was reinforced under the influence of religious and
economic entrepreneurs with intellectual and commercial ties to the
Arab-speaking world. It allowed younger people to distance themselves
from traditional political authorities as well as from an older generation
of Muslim religious experts, many of whom had established a friendly
relationship with the colonial authorities.
The role of Muslim authorities as brokers between local producers
and the colonial state was significantly less important than in other
West African countries, such as Senegal and Nigeria. Lineages asso-
ciated with the Sufi orders, a prominent social form of Islam in West
Africa, were influential in pre-colonial polities mostly in and around
some urban areas (such as Timbuktu, Gao, Mopti, Djenne, Segu,
Nioro), an influence that sometimes expanded in the colonial era. The
three important Sufi brotherhoods – the Qadiriyya-Mukhtariyya, the
Tijaniyya, and the Hamawiyya – emerged in doctrinal distinction from,
and in political competition with, each other from around the late eight-
eenth century. Yet, today, their leading lineages and followers jointly
constitute the basis of established or ‘traditional’ Islam. A crucial step
in this fusion of representatives of the diverse doctrinal orientations
into a group with a common structural position in contemporary
Malian society was the active support of French colonial administrators
for some of the Sufi lineages. French administrators considered them
to be representatives of an established ‘African’ Islam capable of
534 DOROTHEA SCHULZ

limiting the growing influence of a new group of Muslim entrepreneurs

with strong intellectual and business ties to the Arab-speaking world.2
The latter, labelled ‘Wahhabi’ by colonial administrators (and by many
people today), consider themselves ‘Sunnis’. Since their emergence in
the 1940s, they have denounced some practices and beliefs associated
with the Sufi brotherhoods as unlawful innovations, that is, as distor-
tions of the original teachings of the Qur’an and Hadith. Although the
Sunnis jointly opposed the representatives of the Muslim establish-
ment, they never constituted a homogenous group.3
The French system of colonial administration invested the French
Parliament with full legislative powers and with functions allowing for
a direct administration of colonies, thus covering the domains of crim-
inal law, of public matters, and of political and administrative regula-
tion. In addition, the Governor General of ‘French West Africa’ (Afrique
Occidentale Française or AOF), seated in Saint-Louis (Senegal), had the
authority to promulgate legislation in the form of ordinances and of ad-
ministrative orders.
A decree of 1903 by the Governor General of the AOF that stipulated
that the French Civil Code should be applicable in French West Africa
marked the formative period of colonial administration and the attempt
of the French colonial powers to establish a legal system of general va-
lidity throughout this colonial territory. It established a dual colonial le-
gal system with two distinct bodies of law and spheres of their applica-
tion. French positive law (Code Napoléon) regulated the affairs of French
citizens and ‘assimilés’, that is, French expatriates, non-African foreign-
ers and those Africans who had acquired French citizenship (citoyens).
The rest of the colonised population, the so-called ‘French subjects’
(Sujets Français), were adjudicated under the Justice Indigène, that is, ac-
cording to various ‘indigenous’ or ‘customary’ laws among which
Islamic law held a privileged position. The treatment of Islamic law as
part of customary law served a divide et impera strategy that effectively
contributed to the mutual neutralisation of competing local political fac-
tions and of the normative orders these different groups sought to es-
tablish as the dominant order. Colonial politico-legal practice thereby
perpetuated the highly dynamic and conflict-ridden relations among dif-
ferent segments of the population.
Colonial attempts to control the normative regulation of social and
political life were played out in, among other things, the absence of a
separate Islamic or customary judicial sector. There was no direct and
explicit incorporation of Islamic law into the constitutional order. The
application of customary and Islamic law was limited to certain social
domains, such as the customary regulation of marriage and inheritance
matters. Yet, even if the regulation of these intra- and inter-familial mat-
ters remained by and large in the hands of male family members who
SHARIA AND NATIONAL LAW IN MALI 535

exerted their authority in this domain, these matters did not remain
fully outside colonial legislation. French politico-legal control interfered,
for example, in the form of decrees such as the Décret Mendel (1939)
and the Décret Jacquinot (1951), which set the minimum age for mar-
riage and limited the amount of the bride-price, respectively.
Formal adjudication of disputes took place at the level of the district
(cercle) and of the province. The third level of jurisdiction was the Court
of Appeal in St. Louis (Senegal). The French administrator-judges work-
ing in the indigenous courts (Tribunaux Indigènes) relied on both cus-
tomary law (including Islamic law) and modern law; they were sup-
ported in their work by advice from experts (assesseurs) in local legal
norms and practices (Sall 1986; Hazard 1972). Some administrators in-
vested great efforts in compiling and systematising ‘local custom’ as it
appeared before their courts.
In regions with a Muslim majority, one of the two assessors or advi-
sors to the judge was either an expert in Islamic jurisprudence or some
other Muslim notable. As these Islamic experts turned into assessors,
they lost crucial competences and decision-making powers with respect
to the settlement of disputes over inheritance, land use, and slaves.4
Because French magistrates had the authority for decision making in
disputes centring around divorce, land use rights, succession, and so
forth, their role had the effect of severely reducing the political power
of village elders and Islamic notables. That being said, it is likely that a
number of experts in Islamic law and in non-Islamic legal conventions,
by contributing to the standardisation of different customary laws, were
able to enhance their personal powers and to buttress the structural po-
sition of the group they represented. Furthermore, in spite of the see-
mingly overarching powers of colonial administrators, their possibilities
to enforce their rulings were actually quite weak and, by and large, lim-
ited to the administrative centres and the immediate surrounding areas.
Also, one has to keep in mind that, except for the areas where Islam
had been established for centuries, Islamic legal norms and regulations
were often strongly inflected by non-Islamic normative principles, such
as in the domain of inheritance, marriage, and divorce matters.
Accordingly, the endorsement of Islamic norms remained limited to
areas under the influence of powerful lineages of Muslim religious
specialists.

The times of the independence struggle

Islam never became a central rallying idiom for anti-colonial resistance in
the Soudan Français. In the times of the independence movement (since
the late 1930s), many representatives of traditional Islam joined the Parti
Socialiste de Progrès (PSP), the basis of which was constituted primarily
536 DOROTHEA SCHULZ

by the former political and religious establishment. The PSP was origin-
ally the more successful political party, but it lost political terrain to its
competitor, the Union Soudanaise-Rassemblement Démocratique
Africain (US-RDA), in the legislative elections of 1957. The latter adopted
a more explicit socialist orientation and had its stronghold among seg-
ments of the population that were considered socially inferior (e.g. descen-
dants of former serfs). Initially, the US-RDA also counted among its ranks
a number of ‘Wahhabi’ activists and merchants.
After the official establishment of the internal autonomy of the
French West African Colonial Territories in 1958, full legislative powers
were transferred to the territorial legislative assemblies, created in the
same year. Mali achieved independence as a member of the Malian
Federation (which then comprised the French Sudan and Senegal); its
first constitution was ratified in January 1959. After the failure and sub-
sequent dissolution of the Malian Federation on 20 August 1960, Mali
was declared an independent nation; its new constitution, adopted in
September 1960, was a slightly revised version of the initial constitu-
tional text.
Islam was not explicitly mentioned in either constitution. Article One
simply states the indivisible, democratic, secular, and social character of
the Malian Republic (Konaré 1982: 160). The legal system also did not
comprise a separate Islamic judicial sector, and sharia did not figure in
any area of codified law. Almost immediately after its independence,
Mali became a member of the United Nations (September 1960).

12.3 The period from 1960 until 1985

From Keita’s socialist single-party rule to Traoré’s military regime

1960-1968: Keita’s socialist single-party rule

The postcolonial evolution of the state legal system testifies to the per-
sistent colonial legacy of a dual legal order, which established two dis-
tinct types of subjecthood (citoyen versus sujet). In the postcolonial con-
text, the Justice Indigène was discontinued. But the duality of the colonial
system was perpetuated in another form, that is, in the substantial gap
between legal regulations on the one hand, and social practice and local
law in a broader sense, on the other hand. The legacy of the dual colo-
nial legal system is further reflected in the on-going, de facto exclusion
of the majority of the population from basic citizenship rights. Most
Malians – in particular those who live in remote, rural areas – have very
limited, if any, access to courts and legal support. The reverse side of
this situation is the judiciary’s lack of legitimacy and means with which
to enforce judgements.
SHARIA AND NATIONAL LAW IN MALI 537

The first President of Mali, Modibo Keita, pursued a socialistic policy.

Although some ‘Sunni’ reformists had initially supported the cause of
the US-RDA party that led Mali into independence, the reformists soon
lost political terrain, as did their political opponents, the representatives
of traditional Islam. The opposition of conservative Muslim forces to
Keita’s rule was certainly one reason why his party promoted a decid-
edly secular interpretation of the constitution. President Modibo Keita
never went so far as to denounce the influence of Islamic clerics on lo-
cal politics, but his secularist policy sought to neutralise them.
However, his marginalisation of Muslim forces, especially of Muslim
merchants, was only temporarily successful; it provided a seed of grow-
ing popular disaffection and passive resistance that would ultimately
lead to the overthrow of his regime.
The first constitution of the Republic of Mali, adopted by the
National Assembly in September 1960 by unanimous vote, was revised
three times during the de facto single-party rule of the US-RDA.5 The
political system laid down in the constitution was a parliamentary de-
mocracy with a strongly centralised and personalised executive power.
The division of legislative and executive powers was analogous to that
of the French Constitution of 1958. Apart from the Supreme Court, a
State Court (Cour d’État) combined constitutional, jurisdictional, and
administrative functions with those of the Auditing Office (Lavroff &
Peiser 1961: 172; Konaré 1982: 12). In the later years of Modibo Keita’s
rule (post 1965), amendments to the constitution reflected an ever in-
creasing tendency towards monopolisation of political power and the
downplaying of judicial independence and authority.6
The new constitution provided for the codification and legislative re-
form of several domains. The reorganisation of the judiciary in May
1961 put an end to the dualist colonial judicial system. However, adjudi-
cation on the basis of legal advice from assessors was still permitted,
however, in yet unlegislated domains, such as in the area of inheritance.
Revised versions of the colonial Criminal Code (Code Pénal) and the
Code of Civil, Commercial, and Social Procedure (CPCCS) were en-
acted in August 1961, and the colonial Code of Criminal Procedure was
reformed in August 1962. The penal code was subsequently modified
again in 1967 and in 1972 in an effort to ensure the equal treatment
(punishment) of men and woman under Malian law. Reforms estab-
lished, for instance, that men too should be punished in the case of
adultery, abandonment of spouses and children, and for refusal to pro-
vide financial support (Sall 1986: 387). The Code of Civil, Commercial,
and Social Procedure was modified in 1972, under the military regime
of Moussa Traoré (see below). New legislation also emerged in other
areas, including, for example, laws on nationality and labour relations.7
Sharia did not play a role in the formation or adaptation of Malian law.
538 DOROTHEA SCHULZ

The legislation of previously untouched domains occasionally put the

new political power in a paradoxical situation. The US-RDA’s version of
an ‘African path to socialism’ was distinct from the atheist agenda of
Marxism-Leninism. Islam was seen as an important source of both cul-
tural values and socialistic values derived from traditional Malian cul-
ture. Subsuming Islam under the umbrella of an authentic, pre-colonial
African heritage was part and parcel of the US-RDA’s strategy of en-
compassing cultural and political difference, rather than excluding or
marginalising certain cultural conventions at the expense of others. Yet,
by appealing to a common nationalist agenda, Keita’s regime repro-
duced the tensions inherent in the conception of a shared public inter-
est as formulated by liberal Western political theory. Muslim identity
and national identity were occasionally equated in official representa-
tions, but religion per se was treated as a matter of individual conviction
and relegated to the realm of the private.8 No legal or educational insti-
tutions or organisational structures were created that were directly in-
spired by, or served to promote, Islamic normative principles.9
The combination of a socialist programme with a legitimising rheto-
ric based on references to an authentic African cultural heritage con-
fronted the state with contrasting, even mutually exclusive, objectives.
This, and the particular role that Muslim authorities played in a strug-
gle over legitimacy and control, is illustrated by the codification of fa-
mily law. In 1962, the Law on Marriage and Guardianship (Code de
Mariage et de Tutelle) was enacted. This codification was intended to
support the programme of economic restructuration and development
that Modibo Keita’s socialist regime had designed. This programme of
economic development revolved around the aim of transforming the
notion of extended family as the basic unit of the traditional social order
and of pre-capitalist relations of production. This required interference
in social institutions that had remained outside the control of colonial
administration. Moreover, it implied a substantive limitation of the pre-
rogatives of gerontocratic authority. Given that the new nation was
claimed to be based upon and to represent the perpetuation of ‘primor-
dial’ African forms of social solidarity, this hardly authorised the new
leadership to affect precisely these kinds of changes. From this dilem-
ma, there resulted administrative reforms, which sometimes neutral-
ised each other, and a potpourri of, sometimes incongruent, legal provi-
sions (or the lack thereof).10
For instance, the Constitution of 1960 made women full citizens
with equal civil and political rights. The Code de Mariage et de Tutelle of
1962 was based on a new, nuclear family model based on horizontal
bonds between spouses. As such, the code laid down the full civil capa-
cities of married women (Art. 36). Clauses such as the determination of
the minimum marriage age and of the necessity of the wife’s consent
SHARIA AND NATIONAL LAW IN MALI 539

to the marriage crystallised the attempt to weaken the gerontocratic fa-

mily complex based on the authority of male elders over the pro-crea-
tional capacities of women and daughters and over the productive capa-
cities of sons.
The interference of the state with processes of decision-making with-
in the family privileged the bond between the spouses and thus sup-
ported the emergence of new possible alliances within the family.
However, the fact that the area of inheritance was never legislated re-
flected the continuing reluctance of the state to intrude into sensitive
domains of everyday life. Consequently, fifty years post independence,
there is an incongruence between the constitution, which guarantees
women equal rights and full civil capacities, and Article 231 of the
above-mentioned CPCCS which leaves the regulation of inheritance
matters to locally diverse customary conventions – even where they are
adverse to the principles of gender equality.
In rural areas, the substantial privileges of male elders (in some areas
bolstered by references to Islamic principles and norms) were main-
tained principally because the relations of production remained largely
unaffected by the changes imposed from above, in spite of the efforts
of party representatives at the local level. For example, the limitation of
the amount of the bride-price stipulated in the Décret Jacquinot of 1951
was generally disregarded, and no punitive measures were taken against
it, partly because officials themselves continued with this practice.
Arranged marriages, often of legal minors, also continued to be the
rule. Likewise, although official registration of marriage was made a re-
quirement, its application was nowhere enforced, allowing patriarchal
prerogatives to be maintained.11 Remaining traces of customary influ-
ence in the domain of marriage and divorce legislation reflect a reti-
cence on the part of the US-RDA to police sensitive areas of patriarchal
family control and to engage in conflict with religious authorities.

1968-1985: Traoré’s military single-party rule

An alliance between representatives of the Muslim establishment and a
new generation of Muslim businessmen was instrumental in the form-
ing of a resistance to Modibo Keita’s socialist policies, which ended
with his overthrow by a group of officers of the Malian army in 1968.
Immediately after the putsch, an Ordinance (No. 1/1968, dated 19
November) suspended the Constitution of 1960 and established new,
provisional structures of public powers that were to combine executive
and legislative functions (effective until 1979). The result was the crea-
tion of the Military Committee of National Liberation whose president
was to assume the function of the head of state.12 A new constitution,
approved by popular referendum (a novelty) on 2 June 1974, became
540 DOROTHEA SCHULZ

effective only in 1979, with the creation of a new assembly, a govern-

ment and the election of the leader of the military committee, Moussa
Traoré, as the new president of the country, now under the single-party
rule of the Democratic People’s Union of Mali (Union Démocratique du
Peuple du Mali, UDPM).
The new Constitution of 1974 emphasised its continuity with the se-
cular nature of its predecessor and reconfirmed its adherence to the
Universal Declaration of Human Rights (and civil liberties) of 1948.
But in practice, Traoré granted Muslim groups special privileges, in
spite of Mali’s secular constitution. One motivation for Traoré’s prag-
matic revision of the former regime’s decidedly secular orientation was
the political weight of influential Muslim families, many of which had
business connections to the Middle East. Granting this group special
privileges allowed Traoré to extend his control over powerful segments
of the religious establishment and their new opponents, the arabisants,
that is, graduates from institutions of higher learning in the Arab-
speaking world. Because of their higher religious education, the arabi-
sants soon occupied leading posts in the state bureaucracy, especially in
the Ministry of Interior (which comprises a Department of Religious
Affairs) and the Ministry of Education. For this reason, they had strate-
gic advantages over both the representatives of the Sufi orders and the
older generation of ‘Wahhabi’ merchants. The foundation of the na-
tional ‘Association Malienne pour l’Unité et le Progrès de l’Islam’
(AMUPI), in the early 1980s consolidated state control over the activ-
ities of the various groups of Muslims. The organisation’s official raison
d’être was to reconcile ‘traditionalist’ forces of the Muslim camp with
their principal contenders. The organisation allowed the government to
monitor the funds that, starting in the late 1970s, flooded the country,
under the orchestrated efforts of the Saudi government to extend their
da‘wa movement of proselytising to fellow Muslims in sub-Saharan
Africa.
Over the years of Moussa Traoré’s rule, Islam, sponsored by interna-
tional public and private money, acquired a very visible presence in the
form of infrastructure (such as mosques and medersas, that is, schools
with a reformist pedagogy) and of a stronger discursive representation
in the national political arena. Since then, influential Muslim mer-
chants and religious experts have exerted a persistent and important in-
formal influence on national politics. Legislation in the proper sense
was not affected by these developments. Still, from about the second
half of the 1980s, leading Muslim figures have been able to influence
political decisions, such as the closing down of bars and sites of popular
entertainment during the month of Ramadan.13
The 1974 Constitution also created a constitutional basis for military
rule and extended the presidential powers to the president of the
SHARIA AND NATIONAL LAW IN MALI 541

military committee. Changes in the new constitution involved a further

weakening of the judiciary vis-à-vis executive power, and the reinforce-
ment of executive powers vis-à-vis the legislature. For instance, the con-
stitution undermined the independent status of members of the
Supreme Court, by making their selection entirely dependent on the de-
cision by the president (of the military committee and later that of the
ruling party). Additionally, members of the Supreme Court were no
longer elected for life (as stipulated in the Constitution of 1960), but
for a limited period of time (Hazard 1972: 21). The establishment of a
Court of State Security (on 15 September 1969, see Hazard 1972: 21f),
in which members of the ruling military committee participated, can be
seen in the same light. The above-mentioned strengthening of the ex-
ecutive power vis-à-vis legislative power manifested itself in amended
legislative procedures; law proposals could previously be submitted by
the president as well as by the parliament, but from now on the princi-
pal procedural power resided with the president (Sall 1986: 384ff). The
president was also granted the power to appoint special delegates who
should replace municipal councils.
The 1968 putsch had also marked a departure from the socialist eco-
nomic policy of the previous regime.14 Therefore, most of the legislative
changes enacted in this period, by way of ordinances, addressed admin-
istrative, fiscal and economic matters. Almost no legislative changes
were made with respect to penal and civil law.15 This continuity is re-
markable because it implies that the greater public prominence and po-
litical weight of Muslim authorities did not affect positive law, at least
not in these legal domains.
A similar trend became evident in the proposed reform of family and
personal status law, such as the 1962 Law on Marriage and
Guardianship. A bill, submitted for discussion in 1973, did not reflect a
greater influence of Muslim forces on this process. Instead, it illustrated
a greater effort toward bringing Malian family and civil law into confor-
mity with the international aspirations of the Malian state (for example
the support of the U.N. Conventions of the rights of women and of chil-
dren, Hazard 1973: 20, 22f). The proposed changes included the equal
treatment of women and men with respect to inheritance matters, an at-
tempt that implied a reassessment of both Islamic regulation and of non-
Islamic customary conventions that prohibit women to inherit any share
of family property (and occasionally even treat women as part of the in-
heritance). Another proposal was to change the legal status of illegitimate
children, who were not recognised as such either by non-Islamic, cus-
tomary law or by Islamic regulations. The draft law also laid down the le-
gal status of adopted children, giving them the same rights as blood chil-
dren to inheritance and the same obligation to support their aging adop-
tive parents. To date, this draft law has not been approved.16
542 DOROTHEA SCHULZ

12.4 The period from 1985 until the present

The new appeal of an Islamic idiom of political and social
critique

Liberalisation and multi-party democracy under Konaré and Touré

The relative absence of substantial developments in the set-up of legal
institutions and legal change throughout the late 1970s and 1980s re-
flects the general political stagnation that characterised the military re-
gime and single-party rule under Moussa Traoré. One reason why the
growing political weight of influential Muslims did not translate into an
islamisation of the legal institutional framework is certainly the coter-
minous, growing influence of Western donor organisations to which
Moussa Traoré turned increasingly throughout the 1980s in search for
financial support.
Social protest movements directed against his regime surfaced inter-
mittently after the early 1980s, yet were always bloodily repressed.
Another reason why these protest movements did not lead to any sub-
stantive political institutional change under Moussa Traoré’s govern-
ment is that they originated almost exclusively in the urban youth. Only
in 1989 did Moussa Traoré give way to the pressure of the democratisa-
tion movement. This movement, run by urban professionals, aca-
demics, and students was inspired by developments throughout Africa
and in Eastern Europe and called for the introduction of a multi-party
democracy.
In March 1991, a military coup under the leadership of Colonel
Toumani Touré put an end to Moussa Traoré’s single-party rule and to
several weeks of bloody confrontations between the security forces and
students and other supporters of the democracy movement. President
Traoré’s fall from power also marked the demise of the privileged politi-
cal position that Muslim interest groups had occupied under his gov-
ernment. A communiqué of the national reconciliation council (Conseil
de Reconciliation Nationale), led by Colonel Toumani Touré, suspended
the Constitution of 1974 and dissolved the government. A transitional
government under the leadership of Colonel Touré and his fellow mili-
taries (Comité de Transition pour le Salut du Peuple) assumed provisional
administration of public orders on the basis of an ordinance dated 31
March 1991. From the latter emerged a new constitution, which was
adopted by popular referendum on 12 January 1992 (Pimont 1993:
462). Islam was again not mentioned in the constitution.
In 1992 the country’s first democratic elections were held; only 21
per cent of the population participated. The newly-elected president
Alpha Konaré and his party ADEMA (Alliance pour la Démocratie au
SHARIA AND NATIONAL LAW IN MALI 543

Mali) favoured a more stringent interpretation of Mali’s secular consti-

tution. They also ostracised the intégristes, who, as a recently constituted
group of Muslims, capitalised on the liberalised public sphere and
called for an introduction of ‘the sharia’, most often without specifying
the exact contents of the reform to which they aspired.17 Yet, President
Konaré (as well as Toumani Touré who followed him in office in 2002)
could not afford to antagonise prominent representatives of the Muslim
establishment whose informal political influence is based on kin-related
and clientelistic modes of followership.
In other words, the recent process of democratisation and of the em-
powerment of secularist forces within the government has not put an
end to Islam’s imminent political force. The latter never stopped to run
like a red thread through Mali’s political history as an independent na-
tion-state. The ambivalent attitude towards Islam of current state and
party officials is evident in their regular rituals of allegiance to Islamic
values performed in the presence of influential figures of the Muslim
establishment. At the level of positive law, however, the secular charac-
ter of the constitution and of political parties18 is expressly maintained.
The supremacy of the constitution was further established by the
creation of a separate constitutional court charged with the assessment
of the constitutionality of legislative change.19 A major novelty in the
1992 Constitution is that it stipulates the replacement of the former
presidential system with a parliamentary system, establishes a clearer
separation of the legislative and executive powers, and substantially en-
hances the powers of the former vis-à-vis the latter.20

General tendencies of the past ten years

Since the political liberalisation of the early 1990s, Mali has witnessed
an invigoration of Muslim actors who articulate a wide array of posi-
tions with regard to the extent to which Islam should provide the basis
of the legal foundations of the political community. A numerically rela-
tively minor group of actors, the intégristes mentioned above, denounced
the prohibition of religious parties in 1991. At present, they seek to ex-
ert influence on public policy making and particular political processes,
such as the reform of the judiciary and the draft family law. The debate
over the reform of family law and of the judiciary is representative of
several, sometimes paradoxical, trends. Contrary to their own claims
that Islam should provide the normative basis of legal reform, their ac-
tual interventions are often guided by pragmatic concerns. Accordingly,
these Muslim spokespersons often form strategic and shifting alliances
with secularist representatives of the current government.
Women’s rights activists constitute another group of actors that plays
a prominent role in current controversies over the extent to which
544 DOROTHEA SCHULZ

Islamic regulations and values should be included in personal status

law. While these women claim to defend the rights of women, their ac-
tual interventions reveal their preoccupation with interests and dilem-
mas of urban intellectual middle-class women; their public interven-
tions, the ways in which they frame the issue of women’s rights, and
the kind of issues they address (e.g. female circumcision) also demon-
strate that their activities and aims are importantly shaped by the cur-
rent agendas of international governmental and non-governmental
organisations.
Thus, current controversies over legislation and over the Islamic nat-
ure of national culture reveal how a local landscape of Muslim and se-
cularist activism is fuelled and partly restructured by Western funding
agencies (from e.g. the United States, France, Germany, and through
European development funds) and by donors from Arab-speaking coun-
tries and other areas of the Muslim world (e.g. Libya, Saudi Arabia,
Iran, Pakistan).21 An expansive law reform project initiated in 1999
with the financial support of a number of international donor organisa-
tions (mainly U.S. and European funds) is indicative of this malleable
climate. In aid negotiations with the government, these organisations
were able to place this law reform at the top of the list of priorities.
The project’s primary aim is to eliminate inconsistencies between the
1962 Family Law (Code de Mariage et de Tutelle), the 1972 CPCCS, la-
bour legislation, and the 1992 Constitution, that have taken root as a re-
sult of the sometimes conflicting customary, Islamic, and state legal or-
ders. Without explicitly specifying its agenda with respect to sharia-
based law, the reform project is clearly intended to minimise the influ-
ence of puritan interpretations of Islamic norms. Furthermore, the re-
form project aims at creating institutional support for an extra-judicial
arbitration system, the major function of which would be to deal with
issues of property and land use.22 It also includes measures to restrict
practices of judicial corruption that are a principal reason for many peo-
ple’s tendency to evade the courts. Finally, it aims at improving people’s
opportunities for accessing courts and legal aid institutions.
Throughout the precolonial, colonial, and postcolonial history of con-
temporary Mali, sharia or sharia-based law never constituted a distinct,
and even less so, overruling domain of relevant legal practice. To date,
tendencies towards a dual legal order exist only at the level of norms,
not in the form of separate court systems.

12.5 Constitutional law

Sharia-based law is not explicitly referred to in any part of the constitu-

tional law in force. The pervasive and persistent secular character of the
SHARIA AND NATIONAL LAW IN MALI 545

constitution was once again illustrated and bolstered by the provisions

of 1991, which laid down the secular character of all political parties.
The 1992 Constitution establishes the citizens’ right to freedom of reli-
gion, as well as the equal status of adherents of different religious or-
ientations before the law. Yet in reality, proponents of the two book reli-
gions, Christianity and Islam, have a greater political weight than those
representing traditional African religions.
The Constitution of 1992 expands the list of ‘fundamental rights and
duties of humans and citizens’ (Droits et Devoirs Fondamentaux de
l’Homme et du Citoyen) elaborated upon in the Constitution of 1974.
The preamble declares the determination to defend ‘Rights of the
Woman and Child’ and subscribes to the Declaration of Universal
Human Rights (1948) and to the African Charter of Human and
People’s Rights (1981).
At the same time, the constitution establishes a difference between
the rights and liberties that are simply recognised as opposed to those
that are guaranteed by law. Certain rights (e.g. to work, housing, vaca-
tion, and health and a healthy environment) are by their very nature dif-
ficult to assure, especially in the context of a country where these rights
have been established only in recent times; as such, their non-applica-
tion is not tied to any possibilities for legal recourse.
In the wake of the growing political salience of Islam, a major bone
of contention between Muslim forces and state representatives is the
degree of autonomy that practitioners of the different religions should
have in regulating internal affairs of their religious community beyond
state control. So far, state representatives have successfully fought off at-
tempts by Muslim forces to gain greater control over community and
intra-family affairs.

12.6 Personal status and family law

It must be noted that at the grassrooots level polygamy and other con-
ventions in the sphere of marriage and family relations were never re-
garded as specifically Islamic practices. In most rural and urban zones
of contemporary Mali, physical punishment, repudiation, and other
practices reaffirming women’s inferior status position and rights vis-à-
vis elders and men are commonly accepted. These actions are occasion-
ally attenuated by the intervention of mediators and kin. But the actions
are nevertheless acknowledged as accepted custom. Whether this cus-
tom is defined as Islamic or non-Islamic is of little relevance, except in
the case of urbanites who, influenced by a Saudi Arabia-sponsored mis-
sionary (da’wa) movement, recently adopted an explicit Muslim identity
and distance themselves from others whose ‘un-Islamic’ practices they
546 DOROTHEA SCHULZ

denounce. In other words, over the past twenty years, with the financial
support of donors from the Arab-speaking world and, more recently,
with political liberalisation, Islam has acquired a new political force and
a salience as a symbolic language of legitimacy and normative distinc-
tion. In the course of this process, personal status law has become a
bone of contention.
So far, family law is the only domain of legislation in which Islamic
legal norms constitute an issue for debate. A new bill prepared in 2000
aims at the reform of the 1962 Marriage and Family Law (Code du
Mariage et de la Tutelle). It forms part of the above-mentioned project on
the promotion of democracy and justice in Mali funded by Western do-
nor organisations and intended to enhance the effectiveness and cred-
ibility of the judiciary (see 12.6). The draft law aims to eliminate inter-
nal inconsistencies in the legal code arising from the sometimes con-
flicting principles of Islamic law and of conceptions derived from the
Code Napoléon. The principal issues at stake are the fixing of a maxi-
mum amount of the bride-price, marriage registration, choice of the
form of matrimony (i.e., monogamous versus polygamous), obligation
of obedience to the husband, and choice of the site of residence.
Another goal of the project is to codify as yet unlegislated domains,
such as that of inheritance. Muslim representatives who intervened dur-
ing the publicly staged debates of the draft law in 2000 were guided
not simply by a concern with the incorporation of Islamic legal norms
in the positive law, but by an interest in gaining greater autonomy vis-à-
vis the state in regulating affairs within the Muslim community.
However, the government’s effective neutralisation of Muslim interest
groups in the drafting of a new family law is a clear indication of the
current leadership’s refusal to comply with these aspirations. In spite of
the invigoration of Muslim political forces, their initiatives have not led
to a greater presence or institutionalisation of Islamic legal norms, prac-
tice, institutions or practitioners within the family legislation.
This persistent exclusion is facilitated by the fact that Islamic legal ad-
judication was incorporated into the legal system of the colonial and la-
ter postcolonial state only as one form of customary law, which could be
overruled by the legal principles laid down in the constitution.

12.7 Criminal law

The Code Pénal, revised several times since its initial legislation in the
first constitution of independent Mali (September 1960), has not incor-
porated Islamic penal law. The latter also does not feature in the top
priorities of the agendas of Muslim actors who call for the introduction
of the sharia. Over the past eight years, only a handful of Muslim
SHARIA AND NATIONAL LAW IN MALI 547

spokespersons have explicitly referred to elements of Islamic penal law

in their public interventions, calling for example for public corporal
punishment for the offense of adultery.

12.8 Other areas of law

Neither commercial and banking law nor civil procedural law have been
influenced by Islamic legal conceptions.

12.9 International conventions and human rights

Mali ratified the Covenant on Civil and Political Rights (ICCPR, 1966)
on 16 July 1974 (entry into force on 23 March 1976). It signed the
Convention of Elimination of All Forms of Discrimination against
Women (CEDAW, 1979) on 5 February 1985 (ratified on 10 September
1985; entry into force 18 October 1985). And, on 26 February 1999, it
signed and ratified the Convention against Torture (CAT, 1984), which
went into force on 28 March 1999.23 Assessments of the second peri-
odic report regarding CAT24 and of the first periodic report regarding
CEDAW25 expressed concern about the invocability of the covenants
(Art. 2), the persistence of slavery-like practices and hereditary servitude
in the North, and the continued practice of female genital mutilation as
well as the existence of laws discriminating against women with regard
to marriage, divorce, inheritance, and succession.
The 1992 Constitution, together with other legislation, establishes a
number of institutions and structures for the protection and promotion
of human rights in such areas as equality of citizens before the law,
equality of access to the courts, impartiality in decision making. The or-
ganisation of the judiciary should guarantee the independence of
judges, the provision of remedies, and measures for the protection of
citizens’ rights against arbitrary action. However, the basic conditions
that would ensure these rights are far from being realised. The limita-
tions to this realisation do not reside in the legal texts per se, but in the
political and social conditions that pose clear limitations to the applica-
tion of legal provisions.
Mali’s signing of the Platform of Beijing (1994) has led to a politici-
sation of certain governmental measures, such as the campaign to era-
dicate practices of female circumcision. While women’s rights activists
present this practice as a challenge to women’s right to bodily integrity,
its defendants present it variously as an Islamic or customary and
authentic practice. Here again, references to the Islamic origins of this
practice should be interpreted as a political gesture and as an attempt to
548 DOROTHEA SCHULZ

bolster one’s authoritative position by referring to the foundational texts

of Islam. As with other domains where clear human rights abuses con-
tinue to take place, their commission and perpetuation generally have
little to do with sharia or Islamic law.

12.10 Conclusion

In Mali, Islamic law has never been strongly represented or institutiona-

lised in any colonial or postcolonial state law. Its traces have become
weaker, even if Islam, as an idiom of community building, has gained a
new force since the late 1970s and a greater public prominence after
the political liberalisation of the early 1990s. Mali’s current legal system
reflects several dilemmas and legacies deriving from a longer-standing
legacy of colonial dual administration, from the particular power con-
stellation between Muslim forces and the political power, and finally,
from the autocratic political heritage of its recent postcolonial history.
Throughout the pre-colonial, colonial and postcolonial history of the
Malian legal system, Islamic normative conceptions were acknowledged
and incorporated as instances of traditional or customary regulations.
Sharia or sharia-based law never constituted a distinct and separate do-
main of Mali’s state legal system.
Mali’s governments, past and present, have tended to exert great cau-
tion in intervening via legislation into sensitive domains of Muslim
authority and of patriarchal family control. This cautious dealing with
Islamic matters was realised to a limited extent by the first government
of President Keita, but acquired a new salience under President Traoré.
It was motivated by a pragmatic acknowledgement on President
Traoré’s part of the considerable political power and informal influence
of Muslim authorities and interest groups. Discrepancies between the
Constitution of 1974 (established by Traoré’s government) and actual
political practice exemplify his realpolitik in relation to Muslim political
forces. The new constitution continued to establish the secular charac-
ter of the constitution. Over the years, President Traoré granted Muslim
interest groups special privileges. Still, the absence of legislative
changes with respect to penal and civil law throughout the 1980s im-
plies that the greater political weight and public prominence of Muslim
authorities and interest groups had little real effect on positive law. This
illustrates how Traoré’s government carefully juggled competing inter-
ests and aspirations. He sought to appease Muslim authorities and thus
to bolster the regime’s shaky basis of political legitimacy.
President Traoré’s realpolitik also needs to be related to dynamics
emerging at the interface between national political processes and an
international field of political interests. On the one hand, by granting
SHARIA AND NATIONAL LAW IN MALI 549

special privileges to Muslim political actors, President Traoré gained

greater control over local recipients of financial donations from the
Arab-speaking world – donations that had begun flooding the country
since the late 1970s under the orchestrated efforts of the Saudi govern-
ment. On the other hand, Traoré’s tendency to comply with the aspira-
tions of Muslim political actors only to a limited extent, formed part of
a gradual rapprochement to Western countries and donor organisations
over the 1970s and 1980s. It illustrates the pragmatic orientation of
Moussa Traoré’s regime, which motivated it to depart from the anti-
Western, socialist orientation of the previous regime of Modibo Keita.
The, as yet unaccomplished, project of legislating intra-family rela-
tions is another striking evidence of the pervasive effort of the different
regimes to steer national policy-making in the triangle constituted by
Muslim political influence at the national level, Saudi-orchestrated ef-
forts to gain an influence on national politics, and finally the interests
(and growing financial support) of Western donor organisations.
Legislating this sensitive area of patriarchal control has historically been
likely to destabilise the regimes’ shaky foundations of political legiti-
macy by bringing state institutions and actors into conflict with Muslim
and traditional political authorities. The fact that the respective draft law
of 1973 has not been approved until today – forty years later – illustrates
the persistent reticence by government and state officials to break with
this pact.
The precarious power balance between party politicians, government
officials and Muslim authorities who exert a considerable informal in-
fluence continues to shape administrative and legislative policy. The
current relationship between Muslim actors and representatives of the
secularist government could be appropriately described not as one of
open conflict and confrontation, but as a struggle over representation in
the national arena and over popular support and informal power. In
some localities, Muslim authorities exert an important influence and,
due to the lack of articulation between local, traditional forms of arbitra-
tion and the state legal system, may importantly shape the decisions of
traditional authorities and, occasionally, of state employees.

Notes

1 Dorothea Schulz is currently a professor of anthropology at the University of

Cologne. The author wishes to thank Amandou Keita for his comments.
2 French administrators, who feared a pan-Islamic resistance to European colonialism,
sought to contain the influence of Arab Islamic reformist movements on what they
labelled ‘African Islam’. Therefore, the group of actors to whom I refer to as the cur-
rent ‘Muslim establishment’ (and what, in popular parlance, is often called ‘tradi-
tional’ Islam) is a conglomerate of diverse Muslim actors who reacted to, and often
550 DOROTHEA SCHULZ

benefited from, the policy and discourse of French colonial administration; also sub-
sumed under the rubric of ‘established’ Islam is a wide array of local ritual conven-
tions, as well as beliefs and practices associated with Islamic esoteric knowledge
(Brenner 1993, 2001).
3 Fissions within this group have been reinforced since the 1980s, when young Sunni
intellectuals, who graduated from institutions of higher learning in the Arab-speak-
ing world (the arabisants, cf. Otayek 1993), returned to Mali and entered into compe-
tition with the older generation of Sunni businessmen.
4 One important effect of the imposition of a colonial judicial system was that the for-
mer elite of Islamic scribes, that is, legal experts, were replaced by Sufi sheikhs who
constituted a new, spiritual type of leadership. See Roberts 1991; Sarr & Roberts
1991.
5 The revisions entailed the suppression of the vice-president of government, a modifi-
cation of the national flag, and the replacement of the State Court (Cour d’État) with
a Supreme Court.
6 See e.g. the decree issued on 24 February 1968 to reduce the role of the judiciary (in
this case, the Cour d’Appel) to that of an advisory body (ASAL 1968: 237; Prouzel
1979).
7 Such as the Code de Nationalité (February 1962), the Code du Travail (August 1962),
the Code de Prévoyance Sociale (August 1962), the Code Foréstier (February 1968), the
Code sur l’État Civil (February 1968), the Code Électoral (December 1968), and the
Code de Parenté (July 1973) (Sall 1986: 382f). Sharia-based law did not play a role in
the formulation of these codes.
8 This representation did not acknowledge the existence of non-Muslim minorities
(Christians and those who engage in ‘traditional’ cults); nor did it account for the fact
that Islam was more firmly entrenched in the northern societies of Mali.
9 The containment of Islamic influence was manifest in the field of education.
Traditional and reformist institutions of Islamic learning were not granted the same
status as French-language schools, and some of the reformist schools were integrated
into the national educational system schools (Brenner 2001: 169-173).
10 The restructuring of the administrative organisation aimed at limiting the influence
of traditional political authority by creating party structures at the village level. But
for various reasons (e.g. generational conflicts and the lack of formation, training
and legitimacy of these party structures), the impact of these party structures in
transforming conventional administrative organisation and power structures re-
mained very limited; rather, they contained the seed for the contestation that led up
to the military putsch in 1968 (Prats & Le Roy 1979: 171-173).
11 The fact that women had relatively few possibilities to oppose an arranged marriage
or to leave a husband against the will of their own families was, however, counterba-
lanced by the fact that kin-controlled marriage enhanced the stability of marriages be-
cause it rendered repudiation (whether justified by reference to Islamic or non-
Islamic norms) more difficult. In contrast, today, in particular in urban areas where
elderly control is weakening, the stability of the marriage union and a woman’s possi-
bility to forego repudiation depends to a larger extent on extra-familial resources she
might mobilise in order to enhance her negotiating position vis-à-vis her husband.
12 Similar to the first constitution of independent Mali, the Ordinance allowed for the
existence of multiple political parties. Only the Constitution of 1974 expressly laid
down a single-party system.
13 Many Muslims strongly resented this decision by Moussa Traoré. This illustrates that
although popular support for an Islamic basis of state legislation has increased in ur-
ban areas since the 1980s, the majority of Malian Muslims remained convinced that
Islam should be treated as a personal faith and be relegated to the private realm.
SHARIA AND NATIONAL LAW IN MALI 551

Proponents of a strictly secularist constitutional order and politics were (and still are)
Western-oriented intellectuals and individuals working on behalf of Western donor
organisations (Brenner 1993).
14 Such as changes in taxation; the modification of commercial law to facilitate the de-
velopment of a private commercial sector (ASAL 1969: 270); and the modification of
legal texts that define the status of public enterprises and minimise the central con-
trolling functions of the state (i.e. a planned economy according to a socialist agenda)
and thus facilitate private investment (ASAL 1969: 268f).
15 Exceptions were: (a) the amendment of the criminal code, which provided a peniten-
tiary regime for persons convicted of crimes against public property (1969); and (b)
amendments to the criminal procedure code, which gave the army an investigatory
role comparable to that of judicial police and also invested the criminal chamber of
the Supreme Court with jurisdictional powers over crimes committed by high-rank-
ing party officials (Hazard 1973: 20).
16 The current family bill, placed under considerable public scrutiny in 1999-2001, con-
stitutes a modified version of this draft law. The fact that the draft law has been up
for discussion for thirty years shows that the proposed changes concern highly sensi-
tive issues.
17 Because they addressed the issue of legalising religious parties in most of their inter-
ventions, it seems that their frequently voiced intention to fight for ‘the establish-
ment of Islamic law as the basis of our constitution’ was shorthand for their attempt
to gather a following in a pluralised political field and to gain standing in a landscape
of competing parties.
18 Also, the new constitution stipulates that multipartism cannot be subject to constitu-
tional revision (Diarra 1995).
19 A constitutional court already existed in the form of the constitutional section of the
Supreme Court (Constitution of 1974) or of the State Court (Constitution of 1960).
The novelty in the 1992 Constitution concerns the strengthening of an independent
judiciary. The new constitution provided for a reduction of the powers of both the ex-
ecutive (head of government) and the legislature (president of the assembly) over the
selection of members of the Supreme Court and over the approval/ support of its de-
cisions (Pimont 1993: 468).
20 The constitution establishes a ‘bicephalous’ executive power consisting of the head of
state (Président) and the chief of government (Premier Ministre). It also introduces two
new institutions: the Supreme Council of Regional Entities (Haut Conseil des
Collectivités Territoriales, which bears resemblance to the French parliamentary system
and its Conseil de la République de la Constitution française, and whose members are
elected by direct popular vote to ensure the representation of the regional entities)
and the Conseil économique, social et culturel (with purely consultative functions in the
domain of economic and ‘development’ policy).
21 While many funds from the latter countries are channelled through projects of da’wa
(Arabic, mission, call) and humanitarian aid, Western donor organisations (except for
funds provided by Christian missionary services) generally present their loans as
being directed towards the development of technical infrastructure and, more re-
cently, of civil society and capacity-building.
22 Because these issues are not considered by Muslim authorities to fall into their area
of expertise, it is likely that the establishment of these mediation institutions will not
constitute a bone of contention between protagonists of legal reform based on sharia-
law and their secularist opponents.
23 Other international treaties to which Mali has acceded are the CESCR, CERD, CRC,
and the Rome Statute of the ICC.
552 DOROTHEA SCHULZ

24 The first report to CAT was submitted on 14 August 1979; the second on 3 January
2003.
25 Submitted on 13 November 1986. For the full evaluation of subsequent reports, sub-
mitted on 10 March 2004, see http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/
287/17/IMG/N0428717.pdf?OpenElement, on the second, third, fourth, and fifth
reports.

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(2008 statistics) and https://www.cia.gov/library/publications/the-world-factbook/geos/
ml.html (online edition, last accessed February 2010). Washington D.C.: Central
Intelligence Agency.
Brenner, L. (1993), ‘Constructing Muslim identities in Mali’, in L. Brenner (ed.), Muslim iden-
tity and social change in Subsaharan Africa, 59-78. Bloomington: Indiana University
Press.
Diarra, E. (1995), ‘Constitution et état de droit au Mali’, Revue Juridique et Politique.
Indépendance et Coopération 3: 252-284.
Hazard, J. (1972), ‘Implementing law in post-Keita Mali’s retreat from “Scientific Socialism”’,
African Law Studies 7: 1-26.
Konaré, A. (1982), Les constitutions du Mali. Bamako: Ministère des Relations Extérieures.
Lavroff, D.G. & G. Peiser (1961), ‘La république du Mali’, in D.-G. Lavroff & G. Peiser (eds.),
Les Constitutions Africaines, 163-174. Paris: Éditions Pedone.
Megahed, H. (1970), Socialism and Nation-Building in Africa: The Case of Mali (1960-1968).
Budapest: Center for Afro-Asian Research of the Hungarian Academy of Sciences.
Pimont, Y. (1993), ‘La constitution de la république du Mali’, Revue Juridique et Politique.
Indépendance et Coopération 3: 462-474.
Prats, Y. & E. Le Roy (1979), ‘Les législations contemporaines: Mali’, in G. Conac (ed.), Les in-
stitutions administratives des états Francophones d’Afrique Noire, 170-173. Paris: Economica.
Prouzet, M. (1979), ‘Les procédures de révision constitutionnelle’, in G. Conac (ed.), Les insti-
tutions constitutionnelles des Etats d’Afrique Francophone et de la République Malgache, 281-
320. Paris: Economica.
Roberts, R. (1991), ‘The case of Faama Mademba Sy and the ambiguities of legal jurisdiction
in early colonial French Sudan’, in K.R. Mann & R. Roberts (ed.), Law in Colonial Africa,
185-204. Portsmouth: Heinemann and James Currey.
Sall, Y. (1986), ‘La codification et l’évolution de droit au Mali’, Revue Juridique et Politique.
Indépendance et Coopération 3-4: 376-390.
Sarr, D. & R. Roberts (1991), ‘The jurisdiction of Muslim tribunals in colonial Senegal, 1857-
1932’, in K.R. Mann & R. Roberts (ed.), Law in Colonial Africa, 131-145. Portsmouth:
Heinemann and James Currey.
13 Sharia and national law in
Nigeria

Philip Ostien and Albert Dekker1

Abstract

The relations between sharia and national law in Nigeria have var-
ied widely from time to time and from place to place within the
country – which after all was first brought under a single adminis-
tration only in 1914. In sections 1-4 of this paper the complex his-
tory of our subject is sketched, culminating in the programmes of
‘sharia implementation’ that began in 1999 in twelve of Nigeria’s
northern states. Sections 5-9 concentrate thematically upon the pre-
sent day. Many details of the incorporation of sharia in the laws
of Nigeria are discussed, including the Sharia Courts and the
Sharia Penal and Criminal Procedure Codes now in place in the
sharia states, the continuing application of uncodified Islamic per-
sonal law and other Islamic civil law throughout the north, the ef-
fects of sharia implementation on women and non-Muslims, and
the constitutional questions the sharia implementation pro-
grammes raise. The conclusion, section 10, discusses the likely
fate of Islamic criminal law in the sharia states, and gives some
reason to think that sharia implementation has on the whole been
a positive development for Nigeria.
Table of contents
13.1 The period until 1920. Partial Islamisation, partial
Christianisation, and colonisation by the British 555
13.2 The period from 1920 until 1965. The making of a
nation; the settlement at independence of the place
of Islamic law 560
Constitutional change 1920 to 1960 561
Change in the administration of Islamic law in the Northern
Region 564
The First Republic 567
13.3 The period from 1965 until 1985. Military coups, civil war,
and the sharia debate of 1976-1978 569
Rule by the military, civil war, and the return to civilian rule 569
The sharia debate of 1976-1978 571
Return to military rule 572
13.4 The period from 1985 until the present. Return to civilian
rule at last; sharia implementation in twelve northern
states 573
Constitutional developments 573
Sharia and national law, 1985-present 574
13.5 Constitutional law 577
Sharia in Nigeria’s constitution 578
Establishment of inferior Sharia Courts 579
Expansion of Sharia Court of Appeal jurisdiction 580
Enactment of other elements of the sharia implementation
programmes 581
The ‘state religion’ question 584
13.6 Personal status, family, and inheritance law 585
13.7 Criminal law 589
13.8 Other legal areas, especially economic law 593
13.9 International treaty obligations and human rights 598
Criminal law 599
Women 600
Non-Muslims 601
13.10 Conclusion 602

Notes 606
Bibliography 609
SHARIA AND NATIONAL LAW IN NIGERIA 555

The borders of present-day Nigeria were defined during the late nineteenth
and early twentieth centuries, in the course of imperialist competition among
Britain, France, and Germany for colonies in West Africa. Nigeria, a British
colony, emerged as such in 1900, except that its eastern territories were
augmented after World War I by accessions from the ex-German Cameroons.
Nigeria was governed by the British until 1960, when it became an
independent nation. It was then organised as a federation of its Northern,
Eastern and Western Regions. It has since been divided into 36 states plus
the Federal Capital Territory of Abuja. Its population in 2006, according to
the census then taken, was about 140 million, the largest in Africa by far. Its
ethnic diversity is extreme: the World Factbook conservatively says there are
‘more than 250 ethnic groups’; the linguists list over five hundred living
languages.2 There are however three regional linguae franca, corresponding
to the three largest ethnic groups: Hausa in the North, Igbo in the East, and
Yoruba in the West. Moreover there has been a substantial dispersion of peo-
ple of all ethnic and linguistic backgrounds throughout the country, and
English, Nigeria’s official language, is also widely spoken. According to the
World Factbook, about 50 per cent of Nigeria’s population is Muslim, 40 per
cent Christian, and 10 per cent followers of African traditional religions. But
these numbers are estimates only, as no accepted census since 1958 has
gathered data on religious affiliation. Muslims predominate in the North,
Christians in the East and West, although again there has been a substantial
dispersion of people of all religious persuasions throughout the country.

(Source: Bartleby 2010, Lewis 2009)

13.1 The period until 1920

Partial Islamisation, partial Christianisation, and colonisation by
the British

In the early years of the nineteenth century, the territory which became
Nigeria was occupied by a heterogeneous assortment of peoples at
many different stages of cultural and political development. Some – for
instance the Yoruba and Benin kingdoms in the southwest and the
Muslim emirates in the north – had strong central authorities whose
writs ran far; most others were much more loosely and locally orga-
nised. Trade flourished along camel, donkey and headload routes criss-
crossing West Africa and extending northwards across the Sahara and
eastwards across the Sahel to the Nile. Trade along these routes in-
volved some peoples but passed many others by. Warfare and slave-raid-
ing were common. Slaves were traded within the country, and also ex-
ported, from the north to other parts of West Africa and across the
556 PHILIP OSTIEN AND ALBERT DEKKER

desert to North Africa, and from the south to European slave traders at
the Atlantic coast. From the end of the fifteenth century, Portuguese
and later Dutch, French, and British merchants had established trading
posts on the coast, where for three centuries the Atlantic slave trade
thrived. But until the mid-nineteenth century European penetration
northward into or beyond the mangrove swamps and rain forests of the
coastal region was virtually nil, inhibited by disease. As the saying went:
‘The Bight of Benin, oh the Bight of Benin, where few come out though
many go in!’

Islam had reached the Borno region, in what is now north-eastern

Nigeria, beginning as early as the eleventh century, from north and east
across Sahara and Sahel. It came to Hausaland somewhat later, not only
from north and east but from the west, from the empires of Mali and
Songhay, where for several centuries Timbuktu was West Africa’s most
famous centre of Islamic learning. By the fifteenth century, Islam was
established in the Hausa city-states – Kano and Katsina perhaps most
famous among them. By 1750 it was the nominal, if only loosely ob-
served, religion of the ruling and merchant classes in all those parts of
the country (Hiskett 1984).
Islam received a new impulse in the north in the last quarter of the
eighteenth century, through the activities of the Fulani revivalist and re-
former Shehu Uthman dan Fodio. In twenty-five years of preaching
and teaching the Shehu gained a large following, his ‘Community’, to
the increasing alarm of the Hausa rulers whose corrupt and oppressive
practices he condemned. Measures of repression only exacerbated the
situation, finally triggering off the Fulani-led wars of jihad3 (1804 to
c. 1810 in Hausaland, and continuing elsewhere for many years there-
after) which established the ‘Sokoto Caliphate’ (Johnston 1967; Last
1967). Covering much of what subsequently became Nigeria’s Northern
Region, the Sokoto Caliphate was a loose confederation of emirates, all
owing suzerainty to the Sultan of Sokoto. At least under its first leaders
the Caliphate was inspired by religious zeal: by the desire to purify so-
ciety of un-Islamic practices and to live solely according to the sharia.
In particular, the Fulani ‘made it their aim, in the states which they set
up, to enforce Islamic law exclusively […] and to outlaw customary and
administrative law’ (Schacht 1964: 86). There were some thirty emi-
rates in all. The people under their rule were most of the many tribes
of Northern Nigeria, some more or less Muslim and some not. The rul-
ing houses were all Muslim and mostly Fulani. The Fulani failed in
their war against Borno in the northeast, itself a Muslim empire of an-
cient vintage. When the British arrived, the only parts of the Northern
Region not under the sway of one or the other of these two Muslim em-
pires of Sokoto and Borno were the Igala, Idoma, Tiv, and Jukun areas
SHARIA AND NATIONAL LAW IN NIGERIA 557

in the south, the high plateau in the centre which now has Jos as its ca-
pital, and scattered pockets of peoples elsewhere. With these exceptions,
throughout the North

Islamic law […] was still near its highest degree of practical ap-
plication. Custom, if not entirely eradicated, had been pushed
into the background, and the only existing tribunals were those
of the qadis [Hausa: alkalis4] who were competent in all matters,
including penal law. Only the customary land law remained va-
lid and was enforced by the councils of the sultan and of the
emirs (ibid).

British penetration of the Nigerian interior began with the second jour-
ney of Mungo Park across West Africa from Senegambia (1805-1806).
Park passed through a slice of Nigeria on his way down the Niger River
in 1806, but he died at Bussa before reaching the sea. It was only with
the visits of Hugh Clapperton and his colleagues, first southward across
the desert from Tripoli to Borno, Kano, Sokoto and back (1822-1825),
and then from Badagry on the coast northward to Kano and Sokoto
again (1825-1827), that real knowledge of the country began to be
gained. British explorers then quickly confirmed the course of the
Niger from Bussa to the sea, and its relation to the lower parts of the
River Benue (1830-1831). But repeated attempts to sail or steam up the
Niger/Benue system were frustrated by extremely high death rates from
malaria. Finally, in 1854, William Baikie led an expedition up the Niger
with no loss of life, protecting his men by administering quinine; this
pioneering prophylactic use of quinine against malaria was a turning
point in the European penetration of Nigeria and indeed of Africa. At
the time of Baikie’s expedition, another of the great European explorers
of Africa – Heinrich Barth, in the service of the British Foreign Office –
was nearing the end of his extended visit to the northern parts of the
country. Like Clapperton on his first visit, Barth came south across the
desert from Tripoli, spending five years (1850-1855) travelling in the re-
gion from Borno and Adamawa in the east to Kano, Katsina, Sokoto,
Gwandu and all the way to Timbuktu in the west. Barth’s Travels and
Discoveries in North and Central Africa (1857-1859, five volumes) is one
of the great works of scientific observation and analysis of the nine-
teenth century.
From the mid-nineteenth century, the British gradually extended their
influence into Nigeria. In 1849 and 1852 they declared protectorates
over the Bights of Benin and Biafra, at the southern coast. In 1861 they
annexed Lagos. Trade with the interior (notably for palm oil, used
among other things to lubricate the industrial revolution in Britain),
Christian missionary activity, and political control, all gradually
558 PHILIP OSTIEN AND ALBERT DEKKER

increased. At the Berlin Conference (1885), the British were granted a

protectorate over the southern parts of Nigeria (comprising the later
Eastern and Western Regions). In 1886, seeking to extend their domin-
ions northward at the least possible expense, the British granted the
National African Company, now renamed the Royal Niger Company, a
charter empowering it to govern as well as to trade throughout the still
vaguely-defined territories of the later Northern Region, all expenses of
government to be paid out of revenues from trade. Treaties were signed
between the Company and a number of northern rulers, including the
Sultan of Sokoto, purportedly ceding extensive rights to the Company
(Flint 1960: 89, 129-155). The Company, however, never managed to
achieve ‘effective occupation’ of the North – the new criterion for interna-
tional recognition of territorial claims laid down at the Berlin Conference
– even along the banks of the Niger and Benue rivers where its trading
posts were sited. In 1900 the British revoked the Company’s charter and
declared the Protectorate of Northern Nigeria, making Frederick Lugard
High Commissioner. Units of Britain’s West African Frontier Force then
quickly defeated the forces of various lesser emirates where resistance to
British rule was offered (1901-1902); Borno capitulated without a fight;
and in 1903 Kano and Sokoto were taken, the latter only after a bloody
battle (Muffett 1964). The North was administered separately until, in
1914, the Protectorates of Northern and Southern Nigeria were amalga-
mated with the Colony of Lagos under the name of the Colony and
Protectorate of Nigeria. Lugard was the first Governor-General of the
amalgamated Nigeria (1914-1919) as he had been the first High
Commissioner of its Northern Region (1900-1906).5
Lugard is famous for his articulation of the sometime British policy
of ‘indirect rule’, according to which colonial powers should not attempt
to step directly into the shoes of indigenous rulers, but should govern
through them. The British would rule, but local administration would
be by native rulers, institutions, and laws found already in place, which
would only gradually be modified or developed under British guidance.
The testing-ground for Lugard’s policies was initially Northern Nigeria
under Lugard himself. When, in 1914, he became the first Governor-
General of the whole country, Lugard extended his system of indirect
rule to the Southern provinces as well (Perham 1937).
For Northern Nigeria, a major effect of indirect rule was to perpetu-
ate and strengthen the rule of the Muslim emirates of Sokoto and
Borno. In their search for indigenous authorities through whom to rule,
the British did not go behind the ruling houses of the emirates to the
peoples they ruled. On the contrary, the emirs and those already hold-
ing office under them were confirmed in power, under the name of
‘Native Authorities’, and emirate administration was sometimes even
extended by the British to previously independent Northern peoples. ‘A
SHARIA AND NATIONAL LAW IN NIGERIA 559

policy of preserving the very special identity of the Northern Provinces

was consciously followed’ (Perham 1937: 326). Under this regime ‘the
north entrenched itself in a policy of self-protective withdrawal from
Western culture, whereas people in the south were deeply influenced by
it’ (Rasmussen 1993: 43). When, with the approach of independence,
the principle of federalism was introduced into the government of
Nigeria, and the Northern Region gained its own legislative and execu-
tive bodies, these in turn were initially dominated by the emirate ruling
classes. The giant Northern Region, comprising about two-thirds of the
land-mass of Nigeria and about one-half its population, dominated as it
was by Muslims, and the much smaller but more modernised and
Christianised Eastern and Western Regions, eyed each other with mu-
tual distaste and suspicion as independence approached. The North,
much slower to embrace Western education, feared that if self-govern-
ment came too soon, Southerners would get all the best jobs in the
North, if they did not actually dominate it. For their part the East and
West feared domination at the centre by the more populous North, and
a possible programme of Islamisation of the whole country by Northern
rulers. But we have gone ahead of our story.
As to the law and its administration, indirect rule implied two sys-
tems (broadly speaking) of law, administered by two systems of courts.
On the one hand there was ‘native law and custom’ – defined to include
Islamic law – applied in most cases involving natives, in Native Courts
staffed by native judges, according to native rules of procedure and evi-
dence. In the North, consistently with emirate rule, most Native Courts
were emir’s or alkali’s courts, and native law and custom was largely
equated with Islamic law of the Maliki school. But even in the North, in
the non-Muslim areas, and of course throughout the rest of the country,
all of the more or less vague bodies of native law and custom of the
many local ethnic groups were also applied in the Native Courts serving
their territories. On the other hand there was ‘English’ law. Public law,
including Orders in Council of the Government of Britain (in the case
of Nigeria’s colonial constitutions) and some of the enactments of the
Governors-General, was of course ‘English’. The British also enacted
various other laws specific to Nigeria, including penal laws, and im-
ported their statutes of general application, their doctrines of equity,
and their common law. English law was applied in English courts
staffed by British judges, according to British rules of procedure and
evidence. On its private side, English law was originally intended for ap-
plication primarily to non-natives, and most by far of all cases coming
before Nigerian courts – upwards of 90 per cent, including, for a long
time, criminal cases – were handled in the Native Courts according to
native law and custom. The proviso was that no native law or custom
should be enforced which was ‘repugnant to natural justice, equity and
560 PHILIP OSTIEN AND ALBERT DEKKER

good conscience [as determined by the British] or incompatible either

directly or by necessary implication with any [English] law for the time
being in force’ (Keay & Richardson 1966: 233-238). Under this rule the
penalties imposed in the Native Courts, in particular, were quickly
brought under control. Mutilation – in the North whether as hudud6 or
as qisas7 – was abolished; death sentences had to be carried out in a hu-
mane manner (Milner 1969: 263-264). Various means were used to en-
force the repugnancy rule, including supervision of the Native Courts
by British administrative authorities and finally, in 1933, rights of appeal
from the Native to the English courts.
Islamic law never made the same impact in the southern parts of
Nigeria as it had in the North. Islam did enter the South, notably what
became the Western Region, where there is some record of Muslim
communities already in the seventeenth century; Islam was well estab-
lished in the Yoruba towns along the route to Lagos when the British
began to extend their control there in the second half of the nineteenth
century. But the character of the Islam practiced by the people of this
part of the country was different from that of the North: faithful to that
part of the sharia known as ibadat, which regulates matters of religious
belief and worship, but much less concerned than in the North about
mu’amalat, which regulates the conduct of Muslims in social life and is
enforced in the qadi’s courts.

The majority [of Southern Muslims] appear content to follow the

religion of Islam more or less closely in matters of doctrine and
ritual but to adhere to their tribal customs in such matters as
marriage, divorce, adultery, guardianship and succession
(Anderson 1954: 222).

The British found no Islamic courts in this region when they took over,
nor were any established by them: ‘no specifically Muslim court nor
any formal application of Islamic law is known throughout the South,
even in those areas where the proportion of Muslims is high’ (ibid).
This has remained true until quite recently. The establishment, begin-
ning in 2002, of ‘Independent Sharia Panels’ in some Western cities, is
a subject to which we shall return below.

13.2 The period from 1920 until 1965

The making of a nation; the settlement at independence of the
place of Islamic law

Much of the story of this period has to do with the constitutional

change that occurred with increasing rapidity after World War II,
SHARIA AND NATIONAL LAW IN NIGERIA 561

culminating in Nigerian independence in 1960. This subsumed a ma-

jor change in the administration of Islamic law in the Northern Region
that also took effect in 1960. We deal with these matters in turn.

Constitutional change 1920 to 1960

Indirect rule gave Nigerian officials considerable authority at local levels,
subject to British supervision; but Lugard’s constitution of 1914 gave
them practically no say in the regional or national councils of govern-
ment. Lawmaking was for the Governor-General alone. There was a
Legislative Council, whose assent was required to some laws – but for
Lagos only. The ‘Nigerian Council’, a national body which included a few
Nigerian chiefs, was advisory and deliberative only, and all its ‘unofficial’
members were appointed by the Governor-General in any case. Executive
power was concentrated in the Governor-General, his all-British
Executive Council, his British Lieutenant-Governors for North and
South, and all the officials of the British Colonial Service under them.
This arrangement was objected to by some Nigerians already in
1920. Not by Northern Muslims, but by Southerners – Christianised
and Western-educated – who throughout the colonial period led the
campaign for more say by Nigerians in government at the highest le-
vels, more democracy in the selection of those Nigerians who would
speak and act, more independence from British control, and the sooner
the better. In 1920 such demands – in this case for fully competent
Legislative Councils half composed of elected Africans, among others –
were made by the West African National Congress on behalf of all
Britain’s colonies in West Africa. Later, in Nigeria, Nnamdi Azikiwe
(from the East) and Obafemi Awolowo (from the West) came to the fore
as leaders of what became the independence struggle. Northern leaders,
with some exceptions, were never so anxious to see the British go.
The 1920 demands of the West African National Congress bore some
fruit in Nigeria, resulting in new constitutional arrangements which
took effect in 1922 and lasted until 1947 – longer than any other
Nigerian constitution to date. After 1947 constitutional change became
much more rapid. We can do no more here than summarise what in
lived history was a complex and fraught process of political modernisa-
tion and nation-building. For details the reader is referred to the various
works on Nigerian constitutional history, among the best of which are
Elias 1967 and Nwabueze 1982.
a. The Clifford Constitution, 1922. This established a new ‘Legislative
Council of Nigeria’, whose assent was required to certain laws. But a
majority of its members were colonial officials, and of the unofficial
members only four were elected (three from Lagos, one from Calabar),
the rest being appointed by the Governor (as the Governor-General was
562 PHILIP OSTIEN AND ALBERT DEKKER

renamed in 1919). Furthermore its jurisdiction extended only to the

Southern Provinces and Lagos, the Governor alone retaining the power
to legislate for the North. The all-British Executive Council and the rest
of the apparatus of the colonial government remained in place.
b. The Richards Constitution, 1947. Pent-up demand for change,
Azikiwe and Awolowo to the fore, was released after the war; the then-
Governor, Sir Arthur Richards, had little choice but to make conces-
sions. Under the new constitution he put in place:
– New ‘Provincial Councils’ were established, one each for what were
now the Northern, Eastern and Western Provinces; these were the
first regional bodies on which Nigerians were represented, each
with majorities of ‘unofficial’ members largely selected by the
Native Authority Councils from among themselves. The Provincial
Councils were advisory and deliberative only, with an important ex-
ception: they each sent some of their unofficial members, selected
by themselves, onward to the central Legislative Council. In the
North a House of Chiefs was also established, which also sent some
of its members to the Legislative Council.
– The central Legislative Council for the first time was given nation-
wide jurisdiction and a majority of unofficial members. But still
only four of these were directly elected; the rest were nominated by
the Provincial Councils (16), the Northern House of Chiefs (4), or
the Governor (4). Meantime the old all-British central Executive
Council survived as before.

Several points are worth noting. (1) While Southern politicians were far
from satisfied with progress under the Richards Constitution, the
Northerners struggled to master the new ways and to think how they
would find enough qualified Northerners to fill all the posts that loom-
ing self-government would soon open up. (2) The tendency towards re-
gionalisation is clear; this became full-blown federalism in 1954. (3) Of
the twenty unofficial members of the new central Legislative Council
that were nominated by regional bodies, nine – almost half – came
from the North. This incipient predominance of the North in the na-
tional councils was in recognition of its predominance in size and more
especially in population, but it was a matter of grave concern in the
East and West.
c. The Macpherson Constitution, 1951. This was the first Nigerian con-
stitution drafted in a process which included Nigerians themselves,
starting with village, district and regional meetings, continuing with a
General Conference in Ibadan in January 1950, and culminating in de-
bates in the Provincial Councils, the Northern House of Chiefs, and the
central Legislative Council. The result was the new constitution promul-
gated in July 1951.
SHARIA AND NATIONAL LAW IN NIGERIA 563

– The three provinces were renamed regions. The Provincial Councils

became much-enlarged and mostly-elected regional Houses of
Assembly with real legislative authority. The Northern House of
Chiefs was also enlarged and given legislative powers, and the
Western Region got a House of Chiefs of its own. Regional
Executive Councils were formed, with majorities of ‘unofficial’
members, now called Ministers, drawn from the Houses of
Assembly and of Chiefs.
– At the centre, the Legislative Council became a much-enlarged and
mostly-elected House of Representatives, with wide authority to leg-
islate for the peace, order and good government of the whole country.
Members of this House were still not elected directly, but by the
Regional Houses of Assembly and of Chiefs from among them-
selves. The North was given as many elected members in the House
of Representatives as the East and West put together. The old central
Executive Council now became a Council of Ministers, with a major-
ity of Nigerian Ministers drawn from the House of Representatives.

d. The Lyttleton Constitution, 1954. The 1951 constitution was widely un-
derstood to be a stepping-stone towards fuller democracy and self-gov-
ernment. Several crises hastened both its demise and the tendency to-
wards a more robust federalism. One of these was precipitated in Lagos
in early 1953, at a sitting of the House of Representatives, when a dis-
cussion of the timing of Independence threw the House into an uproar.
The Northern standpoint – no definite date to be set yet – prevailed.
The Northern members were then roughly treated by mobs in Lagos
and all along their train-ride home, and a few weeks later serious fight-
ing, rooted in the trouble in Lagos, broke out between Hausas and
Igbos in Kano. This was the first major crisis of interethnic violence
since the British occupation; unfortunately it presaged much more of
the same to come. Northern leaders, much disturbed, seriously contem-
plated secession from Nigeria, but were deterred, it is said, by their lack
of access to the sea. The Northern House of Assembly instead de-
manded a new constitution giving the regions much more authority
and the central government practically none. Conferences in London
(1953) and Lagos (1954) resulted in a new constitution popularly named
after the then Colonial Secretary, Oliver Lyttleton:
– Nigeria officially became a federation of its three regions. Wide leg-
islative, executive, and judicial powers were transferred to the re-
gions; exclusive competence over a restricted list of subjects was re-
served for the federal government.
– ‘Official’ members almost completely disappeared from the regional
Houses of Assembly and the federal House of Representatives,
which, except in the North, were now elected directly; in the North
564 PHILIP OSTIEN AND ALBERT DEKKER

‘electoral colleges’ based in the Native Authorities were still used ex-
cept in some urban areas. In all regions the members of the federal
House of Representatives were elected independently of the regio-
nal Houses of Assembly.
– Premiers were appointed in each region, from the party command-
ing a majority in the House of Assembly. The first Premiers were
Nnamdi Azikiwe in the East, Obafemi Awolowo in the West, and
Ahmadu Bello, Sardauna of Sokoto, in the North. The Premiers, re-
sponsible to the Houses of Assembly, took over the presidencies of
the regional Executive Councils from the British Governors when
regional self-government was achieved in 1957 (in the East and
West) and 1959 (in the North).
– New High Courts were established for each region, with judges ap-
pointed by the regional governments. The regional Houses of
Assembly were empowered to establish by law such other courts as
they deemed expedient.
– At the centre, most British officials were withdrawn from the
Council of Ministers in 1954; full Ministerial control, with a new
federal Prime Minister at the head of the government, was achieved
in 1957. The first Prime Minister was Abubakar Tafawa Balewa, the
leader in the House of Representatives of the predominant
Northern political party, the Northern Peoples Congress. Tafawa
Balewa subsequently achieved international fame as the first leader
of independent Nigeria.

e. Constitutional Conferences in 1957 and 1958. The Lyttleton Constitution

of 1954 set the basic pattern of government which Nigeria was to take
into Independence. Important steps forward, some already noted, were
then taken at further constitutional conferences held in 1957 and 1958.
A new upper legislative chamber, the Senate, was added at the centre. It
was agreed that a Bill of Fundamental Human Rights, modelled on the
European Convention on Human Rights of 1950, would be included in
the Independence Constitution; the same basic provisions, from time to
time expanded, have appeared in every Nigerian constitution since.
Independence Day was set for the 1st of October, 1960, and other deci-
sions were taken, on revenue allocation, the procedure for creation of
new regions (‘states’) out of old should this be desired in the future,
and other matters. Independence was well on its way.

Change in the administration of Islamic law in the Northern Region

Few changes were made in the system of Native Courts between 1920
and 1954. The various grades of courts, each with its own jurisdiction
and powers, had already been established by statutes of 1906 and 1914.
SHARIA AND NATIONAL LAW IN NIGERIA 565

From 1906 appeals were allowed from courts of lower grades to the
Grade A courts of the emirs and chiefs. Until 1933 there were no ap-
peals outside the Native Court system: British control was through the
supervisory and quasi-appellate jurisdiction of the British administrative
officers. The only other form of control exercised by the British was
over the power of emir’s courts to pass death sentences, which were
made subject to review by the Governor. This was indirect rule, as ap-
plied to the Native Courts, at its height, involving, in the North, only
the most minimal interference by the British in the administration of
Islamic law.
This changed in 1933, when for the first time appeals were allowed
from the Native Courts to the British Magistrate’s and High Courts, a
move designed to integrate the native and British courts. But there was
an important exception:

No appellate authority other than a native court of appeal could

hear an appeal from a native court order relating to marriage, fa-
mily status, guardianship of children, inheritance, testamentary
disposition or administration of an estate (Keay & Richardson
1966: 39).

As the Native Courts also had exclusive original jurisdiction of such

cases, exclusive control of these ‘personal law’ matters was kept in the
hands of the Native Courts, a matter of particular concern to Northern
Muslims. All other matters, including criminal cases decided under
Islamic law, could and often did go on appeal to the British courts,
which thus now began to interfere in the administration of Islamic law
by the Muslim jurists best qualified to know it.
The unhappiness of the Northern ulama8 with this situation is indi-
cated by the fact that very soon after the regions were empowered (in
1954) to control their own court systems, the Northern House of
Assembly set up a new ‘Moslem Court of Appeal’, whose appellate jur-
isdiction extended to all cases, civil and criminal, decided under Islamic
law in the Native Courts. Appeals from the Native Courts in other cases
went to the regional High Court. The introduction of the Moslem Court
of Appeal ‘was welcomed by Chiefs and Moslem jurists as a means of
protecting Moslem law from encroachment as a result of appeal to
“English” courts’ (Keay & Richardson 1966: 56). But there were pro-
blems. The court had no permanent judges, but was merely constituted
as needed from panels of alkalis and assessors learned in Islamic law.
Moreover, Muslim suspicions of the High Court continued, because a
right of further appeal from the Moslem Court of Appeal to the High
Court was ‘rendered inevitable since jurisdiction [of the Moslem Court
of Appeal] extended to criminal matters’ (ibid).
566 PHILIP OSTIEN AND ALBERT DEKKER

But with Independence fast approaching, pressures now came from

other directions which overtook these problems. Chief among them
were the fears of the non-Muslim minorities in the North – both indi-
genous peoples and Southern immigrants – about how they would be
dealt with when the British were gone and they were left at the mercy
of a powerful regional government and its Native Courts, dominated by
Muslims. This was one of many issues looked into by the so-called
Minorities Commission that was appointed after the 1957 constitutional
conference and which held extensive hearings throughout Nigeria in
the first half of 1958. In its lengthy report, submitted to the resumed
constitutional conference in 1958 (Report 1958), the Commission re-
jected the demands of minorities in all the regions for subdivision of
the country into more ‘states’ where some regional minorities could be-
come self-governing majorities; the process of state-creation only began
ten years later, on the eve of the Nigerian civil war. But the Minorities
Commission did recommend, as one form of protection for minorities
in all regions, the inclusion of a Bill of Fundamental Human Rights in
the Independence Constitution. As we have seen, this was done.
Many felt that more radical reform was needed in the North, particu-
larly in the matter of the continuing application there of Islamic crim-
inal law. In this respect Northern Nigeria was out of step even with the
rest of the Muslim world at the time:

[T]he case of Northern Nigeria was, indeed, almost unique, for

up till [1960] this was the only place outside the Arabian penin-
sula in which the Islamic law, both substantive and procedural,
was applied in criminal litigation – sometimes even in regard to
capital offences (Anderson 1976: 27).

The pressure to change this was intense.

If the fears of the considerable Christian and animist minorities

in the North were to be allayed, they needed to be assured that
Sharia law would not be imposed upon them in the native and
customary courts. [...] The Eastern and Western Regions were in-
sistent that the [...] law which was administered in any part of
the Federation [...] should respect the Fundamental Human
Rights of Nigerians as set out in the constitutional instruments.
[...] The U.N. Trusteeship Council had expressed reservations
about the capacity of an independent Federal Government in
Nigeria to uphold Fundamental Human Rights for the minori-
ties without a radical reform of the law in the Northern Region.
The British Government had made its position clear: reform of
the legal and judicial systems in the North was a necessary
SHARIA AND NATIONAL LAW IN NIGERIA 567

preliminary to the granting of self-government to the Region

(Richardson 2001: 2099).

The result of all this pressure was ‘The Settlement of 1960’ (Ostien
2006: 224-231), worked out and agreed to in general terms during 1958
and implemented in a spate of legislation all coming into operation on
30 September 1960, literally on the eve of Independence. Concluding
that the North should keep up with the pace set by the Eastern and
Western Regions in the race for independence, although it was less
‘ready’ than they, and that Northern independence, when it came,
should after all be in federation with the East and West, the North’s
Muslim ruling class agreed to reform the legal and judicial systems of
the Region, most notably by abrogating all the then-prevailing systems
of criminal law, including Islamic criminal law, in favour of new Penal
and Criminal Procedure Codes applicable in all courts of the Region to
all persons without regard to religious or ethnic affiliation. Islamic per-
sonal law, and other Islamic civil law, continued in force for application
in the Native Courts as appropriate, but parted company at the appellate
level. Cases involving Islamic personal law went to the new Sharia
Court of Appeal, whose jurisdiction was limited essentially to such
questions. Cases involving other Islamic civil law went to the new
Native Courts Appellate Division of the High Court. The Moslem Court
of Appeal was abolished. The judicial powers of the emirs were cur-
tailed; in subsequent years these powers were abolished completely.
These concessions were balanced, to some degree, by the new prestige
and privileges accorded to the Sharia Court of Appeal. It was made a
permanent court with a standing membership and given a status
equivalent to the Regional High Court. Its judgments, on matters with-
in its jurisdiction, were made final and unappealable to any other court.
Its jurisdiction was subject to extension beyond personal law matters, to
questions of other Islamic civil law, at the instance of the parties to par-
ticular cases. Perhaps most importantly, its judges were given a seat on
the Native Courts Appellate Division of the High Court, so that the
North’s Muslim jurists had a formal role in the application and develop-
ment of all the law applied in the Native Courts, not limited to Islamic
law. Beginning in 1959 and in the years following independence a huge
effort went into making these new arrangements work properly (Ostien
2007: I, 57-133); and until the Settlement of 1960 fell apart in 1979, it
seems that they actually did.

The First Republic

Under its Independence Constitution Nigeria became completely self-
governing, but it nevertheless remained a ‘part of Her Majesty’s
568 PHILIP OSTIEN AND ALBERT DEKKER

dominions’. In practice this meant, for instance, that Nigeria’s

Governor-General and the Governors of the Regions ‘shall be appointed
by Her Majesty and shall hold office during Her Majesty’s pleasure and
[...] shall be Her Majesty’s representatives’ in their respective jurisdic-
tions; but the appointments were made, of course, on the advice of the
federal Prime Minister and the regional Premiers. Appeals still lay from
the Federal Supreme Court to the Privy Council. There were other
badges and incidents of the continuing monarchy. In 1963 it was
decided to do away with these vestiges and to convert Nigeria into a re-
public. Under the new constitution, which took effect on 1 October
1963, instead of ‘The Federation of Nigeria’ it became ‘The Federal
Republic of Nigeria’. The basic plan and most details of the constitution
remained unchanged. The first Governor-General of independent
Nigeria, Nnamdi Azikiwe, became the first President of the Republic.
Other high officials also remained in place.
Unfortunately things did not go smoothly for the new country. The
following brief summary may serve to give the uninitiated reader some
idea of the range of problems that arose.

The North-South and ethnic tensions, the politics of vindictive-

ness, oppression and thuggery, the Action Group crisis of 1962
[the party, rooted in the Western Region, split; after protracted
violence and rioting and the apparent collapse of government in
the Region the Federal Government declared a state of emer-
gency and the Region was ruled by a federal administrator for
about a year], revenue allocation disputes, the treason trials of
Chief Obafemi Awolowo and twenty other members of the
Action Group [accused of plotting to overthrow the Federal
Government by force], the census controversy of 1962-1964 [the
census, necessary to the allocation of seats in the House of
Representatives, attempted twice, figures never accepted], the
realignment of political parties before the 1964 federal elections
[leaving the main party of the Eastern Region, led by President
Azikiwe, in a weakened position], the 1964-1965 federal elec-
tions [boycotts in the East, violence, supplementary elections re-
quired], the dispute between the President and the Prime
Minister over the 1964 elections, the Western Nigeria elections
of 1965 and the civil violence that followed in the Region, con-
tributed in varying degrees to hasten the fall of the First
Republic and to the military takeover of January 1966 (Joye &
Igweike 1982: 38-39).
SHARIA AND NATIONAL LAW IN NIGERIA 569

13.3 The period from 1965 until 1985

Military coups, civil war, and the sharia debate of 1976-1978

Rule by the military, civil war, and the return to civilian rule
The military takeover proceeded in stages. On the night of 14-15 January
1966, a group of army majors, mostly Igbo by tribe, carried out coordi-
nated assassinations of the Premiers of the Northern and Western
Regions (Ahmadu Bello and Samuel Akintola), several other politicians,
and a number of fellow-officers from the North and West. They also kid-
napped and later killed the federal Prime Minister, Abubakar Tafawa
Balewa. The next day the majors declared their allegiance to the General
Officer Commanding, Major-General Aguiyi-Ironsi, also an Igbo but ap-
parently not involved in the initial plot. President Azikiwe was out of the
country at the time. On 16 January the Acting President, with the backing
of the Council of Ministers, handed over administration of the country to
the Armed Forces with Aguiyi-Ironsi at the head. The parts of the consti-
tution relating to the legislative and executive branches of the federal and
regional governments were suspended, the politicians were thrown out
of office, and Military Governors were appointed for each region.
Legislation thenceforward was by decree (federal) and edict (regional).
The courts continued to function more or less as before.
Besides being an Igbo, Aguiyi-Ironsi pursued some unpopular poli-
cies, including dissolution of the regions and transformation of Nigeria
into a unitary state. In July 1966, before this went very far in practice,
there was a second coup within the military, this time led by Northern
officers, in which Aguiyi-Ironsi and a number of other Igbo officers
were killed. A young Northerner, Lieutenant-Colonel (later General)
Yakubu Gowon, was installed as the new head of the Federal Military
Government, and the federation was restored. Subsequently, in many
parts of the North, there were pogroms against Igbos, precipitating a
massive migration of Igbos back to the East.
The situation finally descended into civil war in mid-1967. On 30
May, Lieutenant Colonel Chukwuemeka Ojukwu, the Military Governor
of the Eastern Region, declared the Region’s secession from the
Federation and its independence as a new nation under the name of
‘The Republic of Biafra’. When discussions aimed at reversing this de-
claration went nowhere, the Federal Military Government commenced
hostilities on 5 June. The war, which resulted in perhaps a million
deaths, mostly in the East, ended in 1970 with the defeat of Biafra and
its reincorporation into the country. Rule by the military continued.
One important by-product of the crises of 1966-1967 was the subdivi-
sion, so much talked of for such a long time, of Nigeria’s regions into
570 PHILIP OSTIEN AND ALBERT DEKKER

smaller states. In May 1967, in a futile attempt to stave off Eastern se-
cession, General Gowon divided the country into twelve states, six of
them in the North. This exercise was repeated in 1976, when seven ad-
ditional states were created, four in the North. This process made the
formerly monolithic North, in particular, much more palatable to the
rest of the country. All the new states were legal clones of the regions
from which they came, the laws and institutions of the old regions be-
coming the laws and institutions of the new states carved out of them,
with much scrambling to staff all the new institutions thus created in
the new states. State-creation had important effects on the administra-
tion of Islamic law in the states of the ex-Northern Region, to which we
shall return shortly.
After the civil war General Gowon promised the early return of the
country to civilian rule. Fulfilment of this promise always seemed to be
put off, however, and, finally losing patience with the delays and with
the mounting corruption throughout the government, in July 1975 an-
other group from within the military deposed Gowon and replaced him
as head of state with General Murtala Mohammed. In addition to taking
drastic steps to combat corruption, Murtala quickly established a sche-
dule for transition to civilian rule, and took the first step: appointment
in late 1975 of a Constitution Drafting Committee (CDC) charged with
preparing a new draft constitution for later consideration by a
Constituent Assembly. Murtala was assassinated in February 1976, in
yet another attempted coup from within the military, which this time
failed. Murtala’s successor was his second in command, General
Olusegun Obasanjo (who subsequently served as Nigeria’s elected presi-
dent from 1999 to 2007). Obasanjo stuck to Murtala’s transition sche-
dule, handing the country back to an elected civilian government on 1
October 1979, under the new-modelled constitution of 1979.
The 1979 constitution preserved the federal structure of Nigeria –
now with nineteen states plus the new Federal Capital Territory of
Abuja (the capital was finally moved from Lagos to Abuja in 1991). But
it made important changes in the system of government, the chief of
which was to switch from the Westminster style inherited from Britain
to a presidential system modelled on the United States. This change ex-
tended also to the state governments, so that in addition to an indepen-
dently-elected president for the federation, with extensive executive
powers laid down in the constitution, each state now also had an ‘execu-
tive governor’ elected independently of its House of Assembly. The new
constitution also entrenched local government reforms decreed by the
Military Government in 1976, guaranteeing a ‘system of local govern-
ment by democratically elected local government councils’ (Art. 7); this
was the final death-knell for emirate administration in the North. Many
other adjustments were made. All of Nigeria’s subsequent constitutions,
SHARIA AND NATIONAL LAW IN NIGERIA 571

including the 1999 constitution currently in effect, have been substan-

tially identical to the 1979 constitution, with variations only at the
margins.

The sharia debate of 1976-1978

The most contentious issue thrown up by the constitution-making pro-
cess of 1976-1978 is directly related to our main subject here: it was the
controversy over the proposal for a new Federal Sharia Court of Appeal.
The call for such an institution was a by-product of the state creation ex-
ercises of 1967 and 1976. As we have seen, each new state inherited
the laws and institutions of its parent region. In the North this meant
(among other things) that in place of the one original Sharia Court of
Appeal for the entire Region, there would now be, first six Sharia
Courts of Appeal, and then ten, one for each of the states into which
the Region was divided. All these new Sharia Courts of Appeal were le-
gal clones of the original one for the Region; hence the judgments of
each were final and unappealable to any other court. This raised the
problem the proposed Federal Sharia Court of Appeal was intended to
solve: the possibility of conflicts between the judgments of the Sharia
Courts of Appeal of the states. They would all be adjudicating on the
same class of cases – Islamic personal law. Inevitably cases involving
the same legal issue would come before the Sharia Courts of Appeal of
different states, and they would decide them differently, thus creating a
conflict. But since the judgments of each of the courts were final, any
conflict that might arise would be unresolveable. As early as 1972 it was
proposed to create a new Federal Sharia Court of Appeal that would sit
to hear appeals from the state Sharia Courts of Appeal and thus (among
other things) to resolve any conflicts that might crop up between them.
The CDC agreed with this proposal and included it in the draft constitu-
tion which it put before the country in 1976.
What happened is well known (Ostien 2006: 238-243 and authorities
cited). The Report of the CDC, including the draft constitution, was
published in September 1976 and became the subject of one year of
public discussion and analysis. In October 1977 a mostly-elected
Constituent Assembly convened to debate the CDC draft and to make
such amendments as it saw fit. In one year of discussion Christian opi-
nion on the Federal Sharia Court of Appeal had polarised and hardened,
and in the Constituent Assembly the Christian delegates ‘unleashed a
storm of protest’ against it (Hunwick 1992: 149). No compromise was
found possible in protracted debate. In the end it was the Christians
who had the votes, and in early April 1978, the Federal Sharia Court of
Appeal was officially eliminated from the constitution. The Muslim
members of the Constituent Assembly walked out the next day,
572 PHILIP OSTIEN AND ALBERT DEKKER

maintaining their boycott for almost three weeks; only the intervention
of the Head of State (Obasanjo) persuaded them to return. The
Assembly then quickly wrapped up its work, adjourning finally on 5
June. After some further adjustments the constitution was officially en-
acted by a decree of 21 September 1978, to take effect on 1 October
1979.
State Sharia Courts of Appeal were indeed provided for, ‘for any
state that requires it’ (Art. 240(1)); this was balanced by also allowing
new Customary Courts of Appeal ‘for any State that requires it’, to
which appeals in cases decided under customary law might be directed
(Art. 245(1)). But the judgments of neither of these types of court were
any more final, even in the fields of Islamic or customary personal
law; all their judgments were made appealable to the federal Court of
Appeal and thence to the Supreme Court. Thus the long-standing right
of Muslim courts in the North to finally and autonomously decide all
issues of Islamic personal law was lost. The possibility of extending
Sharia Court of Appeal jurisdiction to questions of other Islamic civil
law at the instance of the parties to particular cases was also lost. The
right of judges of the Sharia Courts of Appeal to sit with judges of the
High Courts to decide all other appeals from the Native Courts was
also lost. In sum, the single high Muslim appellate court of days gone
by, with wide territorial jurisdiction, finality in its judgments, and a
voice in the decision of appeals by the High Court, was gone, replaced
by many lesser offspring: no longer even clones of the former
Regional Sharia Court of Appeal, they were lesser not only in their ter-
ritorial reach and in their dignity, but also in their jurisdiction, powers,
and autonomy. As the Muslims saw it, these new losses for Islamic
law in Nigeria were the result, not of a negotiated settlement volunta-
rily entered into by the Muslim leadership, as in 1960, but of a humi-
liating defeat at the hands of Nigeria’s Christians. As we shall see, var-
ious attempts were made in subsequent years, through the courts and
the constitution, to repair the damage, until finally, in 1999, Zamfara
State, seizing on a constitutional loophole, took the debate in a whole
new direction.

Return to military rule

Nigeria was governed under the 1979 constitution for only a little over
four years – 1979 to 1983. Shehu Shagari, elected president in 1979,
was re-elected in 1983; but on 31 December 1983 the military stepped in
once again, once again promising to clean up rampant corruption.
General Muhammadu Buhari was installed as the new head of state,
large parts of the constitution were suspended as before, and the coun-
try was ruled by decree and edict for the next sixteen years.
SHARIA AND NATIONAL LAW IN NIGERIA 573

13.4 The period from 1985 until the present

Return to civilian rule at last; sharia implementation in twelve
northern states

Constitutional developments
General Buhari is famous for his ‘War Against Indiscipline’, including
the military tribunals he set up to pursue the recovery of public prop-
erty looted during the Shagari era and to prosecute those who had sto-
len it. Many politicians were arrested and languished in prison awaiting
trial; those tried and convicted were sentenced to serve long terms. But
the tribunals became notorious for their arbitrary and highhanded beha-
viour, to the point that the Nigerian Bar Association instructed its mem-
bers not to appear before them. Buhari’s initial popularity faded as he
resorted to ever more drastic methods to stifle criticism. It is said that
the last straw was a threatened investigation into contracts awarded by
the Ministry of Defence, which if pursued would have implicated senior
military officers (Alli 2001). However that may be, in August 1985
Buhari was deposed by yet another coup from within the military, and
replaced by General Ibrahim Babangida.
Babangida, like Murtala Mohammed a decade earlier, laid down a
schedule for return of the country to civilian rule, complete with an-
other Constituent Assembly convened (1988) to revise the 1979 consti-
tution. But the last stage of Babangida’s transition programme, the pre-
sidential election of 1993, was botched, and the country fell back into
the hands of the military, this time under its worst tyrant to date,
General Sani Abacha. Under the reign of Abacha (1993-1998), Nigeria
drifted deeper into a morass of crime, corruption, and violence, result-
ing in its increasing international isolation. The 1995 hanging of hu-
man rights activist Ken Saro-Wiwa and eight of his companions, by or-
ders of Abacha, led to widespread international condemnation. Nigeria
was suspended as a member of the British Commonwealth and was tar-
geted by economic sanctions imposed by the European Union among
others. Abacha too announced a schedule for return of the country to ci-
vilian rule, convening yet another Constitutional Conference (1994-
1995) for revision of the constitution, but he died in office before his
sincerity on this point was tested.
Abacha died in June 1998. His successor was Major-General
Abdulsalami Abubakar. Although Abubakar initially lacked even a modi-
cum of support or legitimacy, and people feared for a continuation of
the military dictatorship, he quickly took decisive steps towards the re-
covery of the Nigerian democracy (Nzeh 2002: 40-41). He released poli-
tical prisoners, the international sanctions were lifted, and what many
574 PHILIP OSTIEN AND ALBERT DEKKER

consider to be Nigeria’s freest and fairest elections ever were held, to all
local, state, and federal offices. On 29 May 1999, power was transferred
to the new state governors and the new president, Olusegun Obasanjo.
The 1999 constitution, which came into force the same day and under
which the country is still governed, was essentially the 1979 constitu-
tion reinstated.
Nigeria is now continuing its longest period of uninterrupted civilian
rule since Independence. Elections were held as scheduled in 2003;
Obasanjo was returned to power for another four years. Elections were
again held as scheduled in 2007. Although these elections were widely
condemned as badly flawed, the presidency changed hands peacefully
for the first time in Nigeria’s history, and election tribunals, convened
according to constitutional processes, have dealt with the irregularities
apparently unswayed by political considerations. The new president,
Umaru Yar’Adua of Katsina State, has pledged himself and his govern-
ment to respect and enforce the rule of law.

Sharia and national law, 1985-present

The collapse of the Settlement of 1960 in the constitution-making pro-
cess of 1976-1978 has been described. In the twenty years between
1979 and 1999 two types of attempts were made by Muslims to repair
the damage. (1) A new field of constitutional litigation was opened up,
focussed on the Sharia Courts of Appeal. New pressure had been put
on Sharia Court of Appeal jurisdiction because judges of the Sharia
Courts of Appeal no longer sat on the Appellate Division of the High
Court. This meant that Muslims litigating, for instance, contract, tort,
or land cases under Islamic law in the Area Courts (successors in the
North to the Native Courts), who wanted specifically Muslim jurists to
examine the matter on appeal, had no choice but to try for the Sharia
Courts of Appeal. But the trouble now was that the possibility of extend-
ing Sharia Court of Appeal jurisdiction to such cases at the instance of
the parties had been cut off; this was what a succession of cases held
(Ostien 2006: 243-244). (2) The constitution being against them, the
Muslims turned their attention to amending the constitution. The first
attempt, decreed by General Babangida in 1986, deleted the word ‘per-
sonal’ wherever it occurred after the word ‘Islamic’ in the sections of
the 1979 constitution touching on Sharia Court of Appeal jurisdiction.
This theoretically should have done the trick, but the courts held other-
wise, finding the amendment to be ‘of no jurisdictional consequence
and in practical terms [to have] achieved nothing’ (ibid: 244-245).
Under the Babangida and Abacha constitutions, the crucial section was
therefore redrafted and simplified, unequivocally extending the jurisdic-
tion of the Sharia Courts of Appeal to all ‘civil proceedings involving
SHARIA AND NATIONAL LAW IN NIGERIA 575

questions of Islamic law where all the parties are Muslims’; but neither
the Babangida nor the Abacha constitution ever came into force. When
General Abubakar returned Nigeria to civilian rule in 1999, he disre-
garded the Babangida and Abacha constitutions almost entirely, simply
reinstating the 1979 constitution (with some amendments not affecting
our point here). The position looked hopeless.
It was at this point that Alhaji Ahmad Sani came into the picture.
Sani was elected Governor of Zamfara State in the governorship elec-
tions held on 9 January 1999 – the first such elections after sixteen
years of military rule. Zamfara State, in Nigeria’s far north, has a predo-
minantly rural population of about three million, of which 90 per cent
or more are Muslim. Governor Sani was its first elected governor, the
state only having been created (out of Sokoto State) in a new round of
state-creation decreed by Sani Abacha in 1996. Governor Sani says that
during his campaign,

In any town I went to, I first started with kafaral, which is chant-
ing Allahu Akbar10 thrice. Then I always said, ‘I am in the race
not to make money, but to improve on our religious way of wor-
ship, and introduce religious reforms that will make us get
Allah’s favour. And then we will have abundant resources for de-
velopment’ (Tell Magazine, 15 November 1999: 19).

This promise was little noticed outside Zamfara during the campaign.
But after his inauguration on 29 May 1999, Governor Sani proceeded
to make it good – at least as to the religious reforms – and thus began a
new chapter in the history of Nigeria’s Muslims and of their relations
with their non-Muslim neighbours and compatriots.
‘Religious reforms that will make us get Allah’s favour’. By this
Governor Sani did not mean reforms of the religion, of Islam. He
meant reforms of the laws and institutions of Zamfara State, to bring
them more into conformity with Islam – in particular with Islamic law.
‘Sharia implementation’, as the reforms quickly came to be called, has
been effected primarily by legislation at the state and local government
levels, aimed at making the legislating jurisdictions, in various ways,
more ‘sharia compliant’ than they had formerly been. After Zamfara
showed the way, eleven other states – Bauchi, Borno, Gombe, Jigawa,
Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto and Yobe – followed with
similar legislative programmes. Here is a summary of what has been
done:
– The principal point conceded by the Muslims in the Settlement of
1960 – the abrogation of Islamic criminal law – has been re-
claimed. Relying on their constitutional power to legislate on crim-
inal matters, and their constitutional right to freely practice their
576 PHILIP OSTIEN AND ALBERT DEKKER

religion, all sharia states have reinstated Islamic criminal law, in

the form of new Sharia Penal and Criminal Procedure Codes applic-
able to Muslims.
– Relying on their constitutional power to regulate their own court
systems, all sharia states have established inferior Sharia Courts,
with original jurisdiction to apply the full range of Islamic law, civil
and criminal, to Muslims.
– Seizing on an anomalous clause in the constitutional language de-
fining Sharia Court of Appeal jurisdiction – until 1999 little noticed
– all sharia states have extended the jurisdiction of their Sharia
Courts of Appeal to all matters, civil and criminal, decided in the in-
ferior Sharia Courts. This move simply bypassed all the litigation
relating to Sharia Court of Appeal jurisdiction, and all the at-
tempted constitutional amendments, of the previous twenty years.
– A wide range of other legislation has been enacted aimed at particu-
lar ‘social vices’ and ‘un-Islamic behaviour’, like the consumption of
alcohol, gambling, prostitution, unedifying media, and the excessive
mixing together of unrelated males and females. Two states –
Zamfara and Kano – uniquely among all Nigerian states – have
even tackled the pan-Nigerian problem of corruption, setting up
their own statutory Public Complaints and Anti-Corruption
Commissions in accordance with Islamic principles.
– Other institutions have been established – Sharia Commissions and
Councils of Ulama with important advisory and executive functions;
boards for the collection and distribution zakat11; hisbah12 organisa-
tions to monitor and try to enforce sharia compliance, but also to
engage in mediation and conciliation within the society; and others;
– all with the aim of deepening and enforcing the application of
sharia law in the lives of the Muslims of the states that have estab-
lished them.

Not all the sharia states have done all of these things, and what has
been done has been done differently from state to state. Still, taken to-
gether, these interlocking measures – in theory at any rate – have re-
stored the application of Islamic law to Muslims, in the states that have
enacted them, to a state of completeness and a degree of autonomy
from the ‘English’ legal system, that it has not had for over a century.
In practice, of course, things have not always worked out as hoped.
Extensive documentation of what has been done can be found in Ostien
2007.
Governor Sani’s announcement of his sharia implementation pro-
gramme exhilarated Nigeria’s Muslims, and produced tremendous pres-
sure on the governments of other northern states to follow suit. But it
aroused fear and loathing among Christians, who expected the worst;
SHARIA AND NATIONAL LAW IN NIGERIA 577

civil war was even predicted by some (Barends 2003: 19; Ostien 2002:
172-73). Everyone’s worst fears seemed to be confirmed by the first am-
putation of a hand for theft already in March 2000, and then by the
stoning cases of Safiyatu Hussaini (2001-2002) and Amina Lawal
(2002-2003), which caused an uproar around the world.13 In Nigeria
serious fighting, killing and destruction of property, sparked off directly
by agitation for and against sharia implementation, did break out, in
Kaduna State, in February 2000, leaving hundreds, perhaps thousands,
dead. Subsequent lesser outbreaks of violence elsewhere in the North,
in the first year or two after sharia implementation started, perhaps re-
sulted from it in part, and in part from all the other causes of inter-reli-
gious and inter-ethnic strife that have rankled for many years (see e.g.
Boer 2003; Ostien 2009). Since those early days, however, the clamour
has died down completely, to the point that sharia implementation was
a non-issue, virtually never mentioned, in the state and federal election
campaigns of 2007. Some of the reasons for this will be discussed
below.
It remains to mention the ‘Independent Sharia Panels’ (ISPs) estab-
lished in the South in the wake of sharia implementation in the North.
As we have seen, there has never been any state-sanctioned application
of Islamic law in the South. With no chance of changing this through
legislation, Muslims in several southern cities (e.g. Lagos, Ibadan, and
Ijebu-Ode) have set up what amount to private arbitration panels, to ap-
ply Islamic law in the settlement of disputes submitted to them by par-
ties consenting to their jurisdiction and agreeing to abide by their judg-
ments. These panels have gained recognition and status through the in-
volvement of such national bodies as the Supreme Council for Islamic
Affairs and the Supreme Council for Sharia in Nigeria. Intended pri-
marily to resolve private disputes, especially in the field of personal and
family law, the panels have sometimes also been drawn reluctantly into
application of the penal law as well. In one famous case a self-confessed
fornicator submitted himself to the ISP in his city, demanding the hu-
dud punishment for his sin. Evidently never having been married, he
was duly given his one hundred strokes of the cane. One wonders what
would have happened had he been a married man.14 Whether the
courts would enforce the judgments of the ISPs, if asked to do so, is
not known.

13.5 Constitutional law

In this section we deal with sharia-related matters arising under articles

of Nigeria’s constitution other than those on Fundamental Rights,
which are dealt with in section 13.9. As much of the discussion, here
578 PHILIP OSTIEN AND ALBERT DEKKER

and in section 13.9, pertains to various details of the new programmes

of sharia implementation, it should be remarked at the outset that sha-
ria implementation in northern Nigeria was not done in defiance of the
constitution. In most sharia states, before they did anything, the gover-
nors appointed ‘Sharia Implementation Committees’ charged among
other things to ‘study what steps should be taken [and] to consider the
constitutionality of the measures proposed’ (Ostien 2007: II, 3). Then,
in announcing their programmes, the governors explicitly acknowl-
edged the supremacy of the federal constitution and laws. Governor
Sani of Zamfara State said from the beginning that ‘[w]hatever I am
doing must be [...] within the agreement signed by the people of
Nigeria to live together which is referred to as the Constitution’
(Nigerian Guardian, 6 December 1999: 69). Governor Kure of Niger
State said that sharia law as implemented in his state would

submit to the supremacy of the nation’s constitution. […] [H]e as-

sured that where the system ran contrary to the provisions of
the constitution, shari’a would bow to give the constitution the
right of way. [...] He said that having vowed to preserve and pro-
tect the nation’s constitution during his swearing in, his admin-
istration would do nothing to flout the provisions under any
guise (Nigerian Guardian, 17 January 2000: 71).

Many other examples could be given. ‘The Muslims of northern Nigeria

are saying that they want to implement as much of their law as they
possibly can within the constitution and laws of the federation. That at-
titude is entirely politically correct’ (Ostien 2002: 167). The question re-
mains, of course, whether the sharia implementation programmes, or
any of them, do in any way go outside the bounds of the constitution
and laws of the federation. Various aspects of this question are dealt
with in the rest of this section and in section 13.9.

Sharia in Nigeria’s constitution

Sharia finds its place in Nigeria’s 1999 constitution only in a number
of provisions relating to the Sharia Courts of Appeal of the Federal
Capital Territory and of ‘any State that requires it’; in fact, eighteen of
the nineteen states of the ex-Northern Region have Sharia Courts of
Appeal, the nineteenth, Benue State, sharing with Plateau. The constitu-
tion provides in detail for their establishment, the appointment and re-
moval of their judges (since 1979 denominated ‘kadis’ in the constitu-
tion and laws), their jurisdiction, appeals from their judgments, and
other matters relating to them (Chapter VII, on the judicature). For
most purposes the Sharia Courts of Appeal are grouped with the
SHARIA AND NATIONAL LAW IN NIGERIA 579

Supreme Court, the federal Court of Appeal, the state and federal High
Courts, and the Customary Courts of Appeal. Thus, they are superior
courts of record (Art. 6). The salaries of their kadis are set by the
National Assembly and paid out of the Consolidated Revenue Fund of
the federation (Art. 84). Their Grand Kadis (chief judges) may adminis-
ter the oaths of office taken by state governors (Art. 185). Their Grand
Kadis also serve on the National Judicial Council and the State Judicial
Service Commissions, and all kadis may be (and many are) appointed
to serve on Election Tribunals (IIId and VIth Scheds.). The Sharia
Courts of Appeal and their kadis are familiar and accepted features of
Nigeria’s judicial landscape.
The existence of Sharia Courts of Appeal implies the existence of
courts inferior to them in which Islamic law is applied and from which
appeals to them may be taken. These were the North’s Native Courts,
which in 1967-1968 were reconstituted as ‘Area Courts’. As we have
seen, from 1960 the parts of Islamic law applied in these courts was
limited to Islamic personal law and other Islamic civil law, Islamic crim-
inal law having been abrogated. All appeals involving Islamic personal
law went to the Sharia Courts of Appeal. Most appeals involving other
Islamic civil law went to the High Courts until 1979, and all did there-
after. Since 1999-2000, in the twelve sharia states, the inferior courts
in which Islamic law is applied have been reorganised once again: the
Area Courts have been abolished and replaced by ‘Sharia Courts’,
charged to apply the full range of Islamic law, civil and criminal, to
Muslims. Appeals from the Sharia Courts in all types of cases have
been directed to the Sharia Courts of Appeal.

Establishment of inferior Sharia Courts

The states may establish, below their superior courts, ‘such other courts
as may be authorised by law to exercise jurisdiction at first instance or
on appeal on matters with respect to which a House of Assembly may
make laws’, and any court a House of Assembly can establish it can also
abolish (Art. 6). Thus in the sharia states the Area Courts have come
and gone and the Sharia Courts have replaced them. (This involved lit-
tle change of personnel: most of the Area Court judges simply became
Sharia Court alkalis.) Like the Area Courts before them, the Sharia
Courts have criminal as well as civil jurisdiction, now to apply the new
Sharia Penal Codes (see 13.7), as the Area Courts applied the Penal
Code before. With all of this per se there appears to be no constitutional
problem.
But there are problems with some provisions of the new Sharia
Courts laws. Administrative responsibility for the Area Courts (and of
the Native Courts before them) was in the hands of the Chief Judges of
580 PHILIP OSTIEN AND ALBERT DEKKER

the High Courts. Now, in the sharia states, administrative responsibility

for the Sharia Courts has been transferred to the Grand Kadis of the
Sharia Courts of Appeal. Some of the Chief Judges have objected, re-
senting, perhaps, their loss of jurisdiction, and citing their ex officio
chairmanship of the state Judicial Service Commissions, mandated by
the constitution (IIId Sched. Pt. II C). This is perhaps not very convin-
cing; nevertheless, as of October 2009, transfer of control from the
Chief Judge to the Grand Kadi has yet to be accomplished in two sharia
states (Borno and Katsina).
A more serious constitutional question is raised by the direction of
all appeals from the Sharia Courts, in criminal as well as civil matters,
to the Sharia Courts of Appeal, cutting out the High Courts completely.
We consider this point next.

Expansion of Sharia Court of Appeal jurisdiction

Article 277 of Nigeria’s constitution provides as follows (italics added):

277. (1) The Sharia Court of Appeal of a State shall, in addition

to such other jurisdiction as may be conferred upon it by the law of
the State, exercise such appellate and supervisory jurisdiction in
civil proceedings involving questions of Islamic personal law
which the court is competent to decide in accordance with the
provisions of subsection (2) of this section.
(2) For the purposes of subsection (1) of this section, the Sharia
Court of Appeal shall be competent to decide

(a) )
(b) [specified questions of Islamic personal law, e.g. marriage,
(c) divorce, guardianship, inheritance, etc.]
(d)
(e) – [any other question of Islamic personal law at the instance
of Muslim parties to particular cases]

The question is whether subsection (2) lays down the maximum juris-
diction any Sharia Court of Appeal can have, or whether it lays down
the minimum only, the states being free, under the italicised clause of
subsection (1), to add any further jurisdiction they please. If the former,
then the sharia states, by expanding the jurisdiction of their Sharia
Courts of Appeal to matters well outside the bounds of Islamic personal
law, have acted unconstitutionally. If the latter, then the sharia states
have found a brilliant bypass to the constitutional roadblock, set up in
1979, which the North’s Muslims then spent twenty years trying to
remove.
SHARIA AND NATIONAL LAW IN NIGERIA 581

If Article 277 is read by itself, the position of the sharia states looks
strong. If it is read in the light of its history and of the rest of constitu-
tion, the position looks much weaker. Article 277 entered the constitution
as Article 242 of the 1979 constitution, in identical terms except for a
small difference in the wording of subsection (2)(e). There is no question
but that the drafters of the 1979 constitution intended to limit Sharia
Court of Appeal jurisdiction to questions of Islamic personal law only,
and that the insertion of the italicised clause of subsection (1) was a
draftsman’s error that somehow escaped detection (Ostien 2006: 248-
252). The other articles of the constitution dealing with the Sharia Courts
of Appeal relentlessly use the phrase ‘Islamic personal law’. To take just
one example, the class of cases in which appeals lie from the Sharia
Courts of Appeal to the federal Court of Appeal is defined as ‘civil pro-
ceedings before the Sharia Court of Appeal with respect to any question
of Islamic personal law which the Sharia Court of Appeal is competent to
decide’ (Art. 244(1)); but it cannot have been the intention to leave unap-
pealable other types of questions that the state Houses of Assembly, if
they were allowed, might empower their Sharia Courts of Appeal to de-
cide. The High Courts of two states have already held that expansion of
Sharia Court of Appeal jurisdiction beyond questions of Islamic personal
law is unconstitutional.15 In those states the old pattern has returned,
appeals from the Sharia Courts in Islamic personal law cases going to
the Sharia Courts of Appeal, appeals in all other cases going to the
High Courts. More of the same is likely as time goes on.

Enactment of other elements of the sharia implementation programmes

Article 4(7) of the constitution provides that:

The House of Assembly of a State shall have power to make laws

for the peace, order and good government of the State or any part
thereof with respect to the following matters, that is to say
(a) any matter not included in the Exclusive Legislative List
[…];
(b) any matter included in the Concurrent Legislative List […]
to the extent prescribed [therein];
(c) any other matter with respect to which it is empowered to
make laws in accordance with the provisions of this
Constitution.

We consider briefly the authority of the sharia states under this provi-
sion to enact four other elements of their sharia implementation
programmes.
582 PHILIP OSTIEN AND ALBERT DEKKER

a. Criminal law. The power to create and punish criminal offences is

vested in both the state and federal governments in Nigeria, within
their respective spheres of authority (IId Sched. Pt. III(2)). Thus the
Penal Codes in force in all northern states are state enactments. There
are of course limitations. No legislative body has power, ‘in relation to
any criminal offence whatsoever, […] to make any law which shall have
retrospective effect’ (Art. 4(9)). Every criminal offence must be ‘defined
and the penalty therefore […] prescribed in a written law’, i.e. ‘an Act of
the National Assembly or a Law of a State [or] any subsidiary legislation
or instrument under the provisions of a law’ (Art. 36(12)). The new
Sharia Penal Codes enacted by the sharia states comply with these
broad requirements, except in one particular. Seven of the codes contain
(with minor variations) the following provision, captioned ‘General
offences’:

Any act or omission which is not specifically mentioned in this

Sharia Penal Code but is otherwise declared to be an offence un-
der the Qur’an, Sunnah, and ijtihad of the Maliki school of
Islamic thought, shall be an offence under this code and such
act or omission shall be punishable: (a) with imprisonment for a
term which may extend to five years, or (b) with caning which
may extend to 50 lashes, or (c) with a fine which may extend to
N5,000.00 [about E 2216], or with any two of the above punish-
ments (Ostien 2007: IV, 60 n.e 118).

This incorporation by reference of otherwise undefined offences no

doubt violates Art. 36(12), and would be struck down if challenged in a
proper case. The other constitutional questions raised by the Sharia
Penal Codes relate not to the power of the sharia states to enact them,
but to issues of fundamental rights considered in section 13.9 below.
b. Evidence. Since 1979 the subject of evidence has been on the con-
stitutional Exclusive Legislative List (IId Sched. Pt. I §23), and therefore
presumptively reserved for the National Assembly alone; and there is a
federal Evidence Act, in force in Nigeria with few changes since 1945.
At the same time, the North’s Area Courts, and presumably the South’s
Customary Courts as well, have continued to apply, as the case may be,
Islamic or ‘native and customary’ rules of procedure and evidence in ci-
vil matters coming before them, without regard to the Evidence Act;
and now the new Sharia Courts are doing the same in criminal matters
as well. Can this be correct?
As to civil matters there is clearly no problem. The Evidence Act by
its own terms is inapplicable ‘to judicial proceedings in any civil cause
or matter in or before any Sharia Court of Appeal, Customary Court of
Appeal, Area Court or Customary Court’ (§1(2)(c)). It may be presumed
SHARIA AND NATIONAL LAW IN NIGERIA 583

that the term ‘Area Court’ will be read to include the new Sharia Courts
as well. This exemption recognises the continuing duality of Nigeria’s
court systems and the continuing applicability, in the latter-day ‘native’
courts, of Islamic law and native law and custom, including the law and
custom relating to procedure and evidence.
Criminal matters are a different question. The Evidence Act says that
the North’s Area Courts (we presume Sharia Courts are included), in
criminal causes or matters, are to be guided by its provisions, except that
they are bound by six specific sections all relating to burden of proof (§1
(3) and (4)). This distinction, between being guided and being bound,
entered the law of the Northern Region in 1960, supposedly on an ‘in-
terim’ basis, while the judges of the Native Courts became accustomed
to the new Penal and Criminal Procedure Codes and the Evidence Act,
all very different from the law they had been accustomed to applying up
till then (Ostien 2007: I, 63-65 and IV, 181-182). But the distinction has
persisted until the present, and has even been perpetuated in some of
the new Sharia Criminal Procedure Codes enacted in the sharia states
(Ostien 2007: IV, 195-197). Whether the principle of guidance, as used
in §1(3) of the Evidence Act, leaves room for the application, in criminal
cases in the Sharia Courts, of Islamic rules of evidence which are some-
times inconsistent with the Act, is a complex question on which we can-
not enter further here.
c. Zakat. ‘Taxation of incomes, profits and capital gains’ is on the
Exclusive Legislative List (IId Sched. Pt. I §59). But eleven of the sharia
states have set up official agencies for the collection and distribution of
zakat, the Islamic ‘alms’ tax (see note 11). In most states payment re-
mains voluntary, but in three defaulters can be prosecuted, and in one
other zakat can be recovered as a civil debt. Zakat is a tax on wealth.
The levy of zakat on their wealthy Muslims by the sharia states, if it is
ever challenged, seems unlikely to be held inconsistent with the federal
government’s exclusive prerogative to tax incomes, profits and capital
gains.
d. The hisbah groups. ‘Police and other government security services
established by law’ are also on the Exclusive Legislative List (IId Sched.
Pt. I §45), and Art. 214(1) makes the point very clear:

There shall be a Police Force for Nigeria, which shall be known

as the Nigeria Police Force, and […] no other police force shall
be established for the Federation or any part thereof.

But seven of the sharia states have set up official hisbah organisations
(see note 12) (in other states hisbah groups have organised themselves
as NGOs), which, along with preaching, admonishing, and a good deal
of mediation and conciliation, also do what looks like policing –
584 PHILIP OSTIEN AND ALBERT DEKKER

monitoring and trying to enforce sharia compliance. This has some-

times brought them into conflict with members of the public and with
the police, particularly in Kano, where hisbah attempts to enforce bans
on commercial motorcycles carrying female passengers resulted in late
2005 in serious clashes between hisbah, motorcycle drivers, and police
(Nasir 2007: 110-111). Things came to a head in February 2006, when
the federal government accused the Kano hisbah of being an illegal po-
lice force, purported to ban it, and arrested its Commander and his dep-
uty, charging them with three counts of felonious membership and
management of an unlawful society (Nigerian Guardian, 10 February
2006: 1). In response, two lawsuits against the federal government were
promptly filed: Kano State sued in the Supreme Court, seeking a de-
claration that its hisbah organisation was legal, and the Commander
and his deputy sued in the Federal High Court, seeking damages for
unlawful arrest and illegal detention. The Supreme Court case was in-
conclusive: the court dismissed it as not within its original jurisdiction
and said it should be refiled, if at all, in the Federal High Court (it
never was). Kano was the clear winner in the other two cases: the hisbah
Commander and his deputy were acquitted of the criminal charges, and
in their own suit for illegal detention they won N500,000 (about
E 2,222) each.17 The Kano and other hisbah organisations are still very
much in business.

The ‘state religion’ question

Article 10 of Nigeria’s constitution provides that ‘The Government of
the Federation or of a State shall not adopt any religion as State
Religion.’ Have the sharia states, or any of them, violated this provi-
sion? This is a difficult question, because the measures taken differ sig-
nificantly from state to state, most importantly in the scope of ‘imple-
mentation of sharia’ attempted, and also because no Nigerian court –
certainly not the Supreme Court – has yet interpreted or applied Article
10 in any concrete case, so that one does not know what test the courts
will use to determine whether a particular enactment or combination of
enactments amounts to adoption of a state religion within the meaning
of Article 10. Nevertheless, it is possible to say something on this point,
at least in a negative sense: Article 10 does not imply a regime of strict
separation between religion and state such as that obtaining in the
United States and some other countries (Ostien & Gamaliel 2002). Its
language is not so sweeping as the U.S. ‘establishment clause’, for in-
stance;18 and other parts of Nigeria’s constitution, some mentioned al-
ready, imply a degree of accommodation, cooperation, and even of en-
tanglement between religion and state that would be unimaginable in
the U.S. For instance, Article 38(2), part of the fundamental rights
SHARIA AND NATIONAL LAW IN NIGERIA 585

provision on freedom of thought, conscience, and religion, clearly per-

mits religious instruction to be given and religious ceremonies and ob-
servances to be conducted in the public schools, all of which is done
everywhere in Nigeria but is strictly prohibited in the U.S. Articles 6,
247, 275-279, and 288, all touching on the Sharia Courts of Appeal,
clearly permit the enforcement of at least large parts of the sharia in the
public courts. The provisions on the Sharia Courts of Appeal bring out
another point: Article 10 does not require even that all religious groups
be treated identically by the state. The case of religion in the public
schools obscures this, since Muslims and Christians both want it and
both get it on equal terms. But they do not both want to live under their
own religious law: only the Muslims want that, and under Nigeria’s con-
stitution they may to a large extent have it: Article 10, read in the light
of Articles 6, 247, 275-279, and 288, permits the state and federal gov-
ernments to accommodate them in particular in this way. But whether
any or all of the sharia states have gone too far with their sharia imple-
mentation programmes, passing beyond the bounds permitted by
Article 10, remains, until the Nigerian courts clarify what Article 10
means, a moot point (Peters 2003: 45).

13.6 Personal status, family, and inheritance law

This part of the law – ‘personal law’, to use the term often applied – is
extremely complex, or should we say ‘plural’, in Nigeria.
Under the constitution, the federal government has the exclusive
right to regulate ‘the formation, annulment and dissolution of mar-
riages other than marriages under Islamic law and customary law includ-
ing matrimonial causes relating thereto’ (IId Sched. Pt. I §61, italics
added). Accordingly there is a federal (originally English) Marriage Act
dating from the colonial period, and a federal (also substantially
English) Matrimonial Causes Act dating from 1970, the latter having re-
placed the prior rule that in matrimonial causes the courts should sim-
ply proceed ‘in conformity with the law and practice for the time being
in force in England’. Marriages under the Marriage Act must be offi-
cially registered. Matrimonial causes must be litigated in the High
Courts.
But most marriages by far, and most dissolutions of marriage, and
most issues closely related to marriage such as guardianships, child
custody and, particularly for women, personal status and property
rights, are governed not by the federal statutes at all, but by Islamic law
or customary law. Islamic law is the classical Maliki fiqh,19 with all its fa-
miliar features; customary law is as multifarious as are Nigeria’s many
ethnic groups. But in truth it is heterogeneous amalgams, of Islamic
586 PHILIP OSTIEN AND ALBERT DEKKER

law with local custom, or of one set of customs with another, which are
in practice applied; and none of it is codified. Administration is often
informal, by family, clan, or community elders; few of the proceedings,
including marriages and divorces, are officially recorded anywhere. If it
comes to that, litigation is in the local Sharia, Area, or (in the southern
states) the Customary Courts.
The constitution leaves regulation of inheritance entirely to the states.
In all states there are statutes, again derived from English law, governing
testate and intestate succession. These interact in various ways with the
Marriage Act and with Islamic and customary law. Thus, for instance,
the inheritance statutes usually apply only if one is married under the
Marriage Act; but even if one is, one’s power to dispose of property even
by will may be limited by Islamic or customary law (Ezeilo undated: 3).
But again, because most people are not married under the Marriage Act,
most estates by far are disposed of, usually informally but sometimes
through the local courts, under Islamic and/or customary law.
We have noted that in Nigeria’s southern states Islamic personal law
has never ousted customary personal law even among the Muslims
(perhaps the new Independent Sharia Panels will begin to change that);
so in practice it is only in the northern states that Islamic personal law
is formally applied, in the Sharia Courts of the sharia states and in the
Area Courts of other northern states in cases involving Muslims. The
Area Courts also apply the appropriate customary personal law in cases
involving non-Muslims, and there are statutory choice-of-law rules for
‘mixed’ cases.
As to non-Muslims in the sharia states, who might wish their own
customary law to be applied in the adjudication of their disputes, the si-
tuation has become confused – the Area Courts, which used to apply
customary law, having been abolished, the new Sharia Courts having
jurisdiction to apply Islamic law only, and the Magistrate’s and High
Courts having historically been excluded from original jurisdiction of
personal law matters arising under ‘native law and custom’. In some
places non-Muslims are nevertheless quietly being catered for in the
Sharia Courts, the alkalis applying local customary law as if they were
still the Area Court judges that most of them used to be. In other places
the Magistrate’s Courts come in, although their jurisdiction to do so too
is questionable.
In the sharia states, appeals from the Sharia Courts should all go to
the Sharia Courts of Appeal: it is anybody’s guess what would happen
to an appeal by a non-Muslim whose divorce or inheritance case had
been decided by the alkali under customary law. In the non-sharia
northern states, appeals from the Area Courts go to the Sharia Courts
of Appeal in cases decided under Islamic personal law and to the High
Courts or the Customary Courts of Appeal in cases decided under
SHARIA AND NATIONAL LAW IN NIGERIA 587

customary personal law. All appeals from the Magistrate’s Courts go to

the High Courts. High Court decisions have always been appealable
further to the federal Court of Appeal and then to the Supreme Court,
and similarly, since 1979, for decisions of the Sharia and Customary
Courts of Appeal. The federal appellate courts both therefore do some-
times decide questions of Islamic and customary personal law.
The old patriarchies remain strong all over Nigeria, and accordingly
much personal law and custom is skewed in favour of men. Many girls
are married off at young ages to much older men, sometimes against
their will (in Muslim cases, under the Maliki doctrine of ijbar, the over-
ruling power of the father or guardian to act purely (theoretically) in the
girl’s best interest). Polygamy is lawful and remains common in all
parts of the country under both Islamic and customary law. Purdah20 is
widely practiced among northern Muslims. Physical abuse of wives by
their husbands is tolerated and even protected: §55(1)(d) of the Penal
Codes of all northern states, now perpetuated in the new Sharia Penal
Codes as well, provides that:

Nothing is an offence which does not amount to the infliction of

grievous hurt upon any person and which is done [...] by a hus-
band for the purpose of correcting his wife.

Divorce is everywhere easier for men than for women (including the
unfettered privilege of talak21 for Muslim men), so they do it more of-
ten, and sometimes evade their putative obligations to wives and chil-
dren in the process. But it is perhaps in the area of inheritance rights
that women, especially in parts of the south, suffer the most – particu-
larly widows, who under the customary practices of some ethnic groups
are denied any right to inherit from their husbands, are sometimes
themselves treated as heritable property, and are ritually humiliated and
abused in the process (Sossou 2002 and authorities cited). Muslim wo-
men are generally not subjected to such extremes, but even they at best
receive lesser shares than similarly situated males under the Islamic
rules of inheritance. Much of this falls through the gaps of the funda-
mental rights provisions of the constitution. Finer-grained provisions,
such as those embodied in the U.N. Convention on the Rights of the
Child and the U.N. Convention on the Elimination of All Forms of
Discrimination against Women, unfortunately do not apply: both con-
ventions were ratified long ago by Nigeria, but neither has yet been do-
mesticated, so neither yet has the force of law. We return to this subject
in section 13.9 below.
Further details of any of Nigeria’s bodies of personal law and custom
are beyond the scope of this paper. Readers interested in Islamic perso-
nal law as applied in northern Nigeria in particular might well start
588 PHILIP OSTIEN AND ALBERT DEKKER

with J.N.D. Anderson’s long essay on Nigeria in his book on Islamic

Law in Africa (Anderson 1954: 171-224). Anderson, himself deeply
versed in the fiqh of all the major schools of Islamic law, made a tour of
all parts of the then-Northern Region, conversing, often directly in
Arabic, with the Sultan of Sokoto, many emirs, the chief alkalis and
other court personnel, the Sudanese lecturers at the Kano School of
Arabic Studies, and leading ulama (ibid: 183-184). The survey based on
those discussions ranges over many aspects of Islamic law as applied in
the various parts of the Region, including ‘those modifications of the
pure Shari‘a in favour of local custom which are noticeable, in greater
or lesser degree, in the day to day work of even the most staunchly
Muslim courts’ (ibid: 172). Let one example suffice:

The maintenance due to a wife [...] is everywhere calculated by

exclusive reference to the husband’s means: and this, while rea-
sonable enough, is directly contrary to the normal Maliki rule,
as the better jurists in Nigeria fully realise. This provides a good
example of a point on which customary law has everywhere tri-
umphed (ibid: 208).22

No doubt the position has changed in some respects in the half-century

since: probably not very much, but no one really knows because the sort
of investigation made by Anderson, certainly on anything like the same
scale, has never been repeated. That Islamic personal law as applied in
northern Nigeria is still often contaminated by local custom antithetical
to women is confirmed by the work of the Federation of Muslim
Women Associations in Nigeria (FOMWAN), founded in 1985 (Yusuf
1993), and more recently by the attitude taken toward sharia implemen-
tation by Muslim women activists.

Most Muslim women activists are working within the Sharia im-
plementation paradigm: trying to use the [...] Islamic legal tradi-
tion to achieve more gender and social justice within Muslim fa-
milies and communities. The enemy is “merely traditional prac-
tices” oppressive to women, which do not have – or should not
have – the sanction of religion (Nasir 2007: 118, with details of
the activist agenda at 100-105).

Sharia implementation

has stimulated many women to a deeper study of Islamic law

and its sources. […] [This] has in turn fed back into the work of
individual women lawyers and of NGOs like WRAPA and
BAOBAB, of providing legal education and counsel and
SHARIA AND NATIONAL LAW IN NIGERIA 589

representation to women in legal matters of all sorts – not only

criminal cases, but especially family matters such as marriage
contracts and divorce settlements, child custody, maintenance,
and widow’s inheritances (ibid: 99-100).

13.7 Criminal law

Nigeria’s southern states apply criminal and criminal procedure statutes

dating from colonial days, derived from English law. In all northern
states, the Penal and Criminal Procedure Codes of 1960 are still in
force, as variously amended by the states. And now, in the sharia states,
running in parallel to the Penal and Criminal Procedure Codes of
1960, there are also Sharia Penal and Criminal Procedure Codes: the
1960 codes are applied in the Magistrate’s and High Courts, the sharia
codes in the Sharia Courts.23 In this section we briefly discuss the new
Sharia Penal and Criminal Procedure Codes. We can do no more than
skim the surface of this interesting topic. For further details see Peters
2003 and Ostien 2007: IV.
The sharia codes are substantially based on the 1960 codes, with
about 89 per cent of Sharia Penal Code sections coming from the Penal
Code, and all of 99 per cent of Sharia Criminal Procedure Code sec-
tions coming from the Criminal Procedure Code (Ostien 2007: IV, 157-
68 and 338-43). Particularly in the Sharia Penal Codes, however, there
has been considerable alteration of Penal Code sections used, with the
effect, together with new sections added, of infusing the Sharia Penal
Codes with the letter and the spirit of Islamic criminal law of the
Maliki school.
Thus, the substantive offences, covered in eighteen chapters of the
Penal Code (312 sections), have been reorganised into just three chap-
ters of the Sharia Penal Codes (290 sections on average). The three
chapters are entitled ‘Hudud and Hudud-Related Offences’, ‘Qisas and
Qisas-Related Offences’, and ‘Ta’azir Offences’. The sections defining
the classical hudud and qisas offences (see notes 6 and 7) have been re-
drafted in accordance with Maliki doctrine, and the classical punish-
ments – amputation for certain thefts, stoning to death for certain acts
of extra-marital sex, retaliation in kind for woundings and homicides
unless waived by the victims or their heirs, and so on – have been im-
posed. Apostasy is not criminalised in any code,24 but in some of them,
in their sections on offences relating to religion, insulting the Prophet
or defiling the Qur’an are made punishable by death. The defence of
provocation to woundings and homicides, available under the Penal
Code, has been eliminated from the Sharia Penal Codes, and other de-
fences inserted, for instance, for acts ‘done by a person compelled by
590 PHILIP OSTIEN AND ALBERT DEKKER

necessity to protect his person, property or honour, or the person, prop-

erty or honour of another from imminent grave danger’.
The ‘ta’azir offences’25 have been copied wholesale from the Penal
Code, but the punishments have been much adjusted, by tinkering with
numbers of years of imprisonment or amounts of fines, and often by
specifying a certain number of ‘lashes’ in addition or in the alternative
to imprisonment or fine. The Penal Code already allowed judges con-
siderable discretion in sentencing, including discretion to substitute
caning or payment of compensation for any other punishment in most
cases; the Sharia Penal Codes continue this broad discretion and ex-
pand it further, allowing also a sentence of reprimand, warning, exhor-
tation, or boycott to be passed ‘on any offender in lieu of, or in addition
to any other punishment to which he might be sentenced for any of-
fence not punishable with death, or offences falling under hudud and qi-
sas’. This restores the almost unlimited discretion of the classical qadi
in ta’azir cases, at least in the matter of sentencing.
There is considerable variation among the Sharia Penal Codes, some
of it trivial, some of it less so. To give just one example: whereas most
Sharia Penal Codes punish criminal breach of trust by a public servant
with imprisonment, fine, and/or lashing, Kano punishes it with ‘ampu-
tation of his right hand [...] and [...] imprisonment for not less than five
years and stolen wealth shall be confiscated’. There has been a project
on to ‘harmonise’ the Sharia Penal Codes (and also the Sharia Criminal
Procedure Codes, among which there is less variation), so far without
much success.
The Sharia Criminal Procedure Codes are almost completely copied
from the Criminal Procedure Code of 1960, not, of course, without
some changes. A number of CPC sections are left out, notably entire
chapters on proceedings in Magistrate’s and High Courts not necessary
in codes to be used only in Sharia Courts. The Sharia Criminal
Procedure Codes also all omit, unaccountably, a section of the Criminal
Procedure Code prohibiting a court from taking cognisance of an adul-
tery case except upon the complaint of the husband or guardian of the
woman involved, or, if she is unmarried, of her father or guardian: this
section, if present, would have stopped before they started most of the
zina cases so far prosecuted, including the famous cases of Safiyatu
Hussaini and Amina Lawal. The ‘Harmonised Sharia Criminal
Procedure Code’ put forward by the Centre for Islamic Legal Studies of
Ahmadu Bello University restores this section, and in Safiyatu’s case
the Sharia Court of Appeal of Sokoto State went even further, essentially
restricting to the guilty person him- or herself the power to bring a zina
case (Ostien 2007: IV, 189 and V, 15-16).
Only three sections are entirely new to the Sharia Criminal
Procedure Codes. Two allow alkalis to order restitution or compensation
SHARIA AND NATIONAL LAW IN NIGERIA 591

in amounts beyond their powers to impose fines or civil damages (dif-

ferent grades of courts have different powers in these regards). The
third relates to qisas:

When a person is sentenced to suffer qisas for injuries the sen-

tence shall direct that the qisas be carried out in the like manner
the offender inflicted such injury on the victim.

This is closely related to the section on mode of execution of death sen-

tences. The Criminal Procedure Code of 1960 had: ‘When a person is
sentenced to death, the sentence shall direct that he be hanged by the
neck till he is dead’. The Sharia Criminal Procedure Codes have
instead:

[…] the sentence shall direct that: (a) he be beheaded; (b) in case
of qisas, he be caused to die in the like manner he caused the
death of his victim…; (c) in case of zina, he be stoned to death;
and (d) in case of hirabah [see note 6], he be caused to die by
crucifixion.

Before a sentence of qisas is passed, the court is to ‘invite the blood rela-
tives of the deceased person, or the complainant as the case may be, to
express their wishes as to whether retaliation should be carried out, or
diyah should be paid or the accused should be forgiven’;26 in some
states the court is bound by the wishes expressed, in some it may appar-
ently go against them if it ‘sees reason’ to do so.
Two other variations from the Criminal Procedure Code raise ques-
tions of conflict with other law. Under the CPC, ‘an accused person
shall be a competent witness in his own behalf in any inquiry or trial’.
Most Sharia Criminal Procedure Codes, consistently with Maliki doc-
trine, have reversed this, saying ‘shall not’. But the Evidence Act, by
which the Sharia Courts are at a minimum to be ‘guided’, says ‘shall’.
The other conflict relates to numbers of witnesses required to prove
particular facts. The Evidence Act says that ‘no particular number of
witnesses shall in any case be required for the proof of any fact’. But
Kano’s Sharia Criminal Procedure Code requires ‘at least four unim-
peached witnesses’ in prosecutions for zina and ‘at least two witnesses
in other offences’ (ibid: IV, 321). The Sharia Penal Codes of two other
states go even further, extending the four-witness rule to other types of
cases and distinguishing between witnesses depending on whether they
are Muslim or non-Muslim, male or female – Niger doubles the num-
ber of witnesses required in many types of cases if they are females
(ibid: 142). But this raises a final point. The laws establishing the Sharia
Courts all lay down that ‘[t]he applicable laws and rules of procedure for
592 PHILIP OSTIEN AND ALBERT DEKKER

the hearing and determination of all civil and criminal proceedings be-
fore the Sharia Courts shall be as prescribed under Islamic law.’ Under
this general directive the Sharia Courts in all states are applying a great
many Islamic rules of procedure and evidence not contained in any en-
acted code but found only in the classical Islamic sources including the
books of fiqh. The rules about numbers of witnesses are an example:
they are expressed in only some of the codes, but are nevertheless pre-
sumably being applied in all the Sharia Courts. This opens up a wide
potential for conflict of laws. How two of the conflicts that have arisen
so far were resolved, is discussed in Ostien 2007: IV, 190-191.
The Sharia Penal and Criminal Procedure Codes have been in force
for a number of years now. Many sentences shocking to modern sensi-
bilities – of amputation of hands for theft, of other forms of mutilation
as retaliation for injuries inflicted, of dire forms of execution, including
stoning to death for zina and stabbing to death with the same knife the
condemned man had used to kill his victims – have been imposed by
the Sharia Courts (Weimann 2007 studies the cases from 2000 to
2004; more have accumulated since). What is notable, however, is how
few of these sentences have actually been executed. Of the probably sev-
eral hundred sentences of amputation of hands for theft, only three
have been carried out, all very soon after sharia implementation started.
None of the other sentences of mutilation appear to have been exe-
cuted, no one has been stoned to death, and Sani Rodi, the double mur-
derer sentenced to be stabbed to death, was hanged instead.
The reason for this is to be found in another provision of all Sharia
Criminal Procedure Codes, which lays down that no sentence of the
type under discussion can be executed unless and until the state gover-
nor expressly consents: and the governors are not consenting. The gov-
ernors’ immediate constituencies are the mostly-Muslim populations of
their states, yes. But the governors, more than most other citizens, are
brought face to face with the wider interests of their states within the
Nigerian federation and internationally, where many pressures have
been brought to bear against permitting the execution of types of sen-
tences viewed in most of the rest of the federation and in much of the
rest of the world as outmoded and inhumane. Moreover many of the
sharia state governors – including Alhaji Ahmad Sani of Zamfara State,
who started the sharia implementation ball rolling – have harboured
ambitions for national office, including the presidency, and they must
have recognised that to permit execution of the many sentences of am-
putation, stoning to death and severe forms of qisas that the Sharia
Courts have imposed would ruin their hopes. The result has been that
with the exception of the three amputations for theft carried out in the
very early days of sharia implementation, the persons on whom such
sentences have been imposed are being quietly dealt with in other ways.
SHARIA AND NATIONAL LAW IN NIGERIA 593

Unfortunately, this often amounts simply to leaving them indefinitely

in prison waiting (often for years, for small offences) for someone to do
something about them. Nevertheless, the fact that the archaic punish-
ments now reinstated in the laws of the sharia states, although they are
being imposed as sentences by the Sharia Courts, are not actually being
executed, is one important reason why the early Nigerian and world cla-
mour over sharia implementation has so thoroughly subsided. We re-
turn to the problem of all those unexecuted sentences in section 10
below.
We have been discussing the Sharia Penal and Criminal Procedure
Codes. But we must not leave the subject of criminal law without men-
tioning the assorted other statutes having penal implications enacted by
various sharia states, or in some cases by local governments within the
states. Aimed at ‘sanitising society’, these laws address subjects some-
times also touched on in the penal codes or other existing legislation: li-
quor, gambling, prostitution, the operation of cinema houses and video
and film viewing centres, obscenity, certain sorts of extravagance, wo-
men’s dressing, hawking by young girls, women riding on commercial
motorcycles, unwholesome market practices, begging, and so on. For
instance, four states, not content simply to revoke existing liquor li-
cences and refuse to issue any more, have repealed their Liquor Laws
entirely and enacted total bans on the manufacture and sale of liquor;
Kano has also gone further to ban consumption – by anyone, not just
Muslims – on pain of a fine of fifty thousand naira (about E 222) or up
to one year’s imprisonment or both; although this was enacted in 2004
it has yet to be enforced in the non-Muslim parts of Kano City and it is
hard to see how it ever can be. In Gummi Local Government Area of
Zamfara State, to try and cut down on frivolous expenditure and un-
seemly display, ‘all forms of procession during wedding and naming
festivities’, including ‘rallies with vehicles, motorcycles, bicycles, don-
keys, horses, camels, etc.’, and ‘all types of musical concerts’, including
‘drumming, praise singing and dancing in whatever form and howso-
ever called’, are prohibited on pain of a fine of three thousand naira or
six months imprisonment or both. Zamfara State has added to existing
national anti-corruption legislation by enacting its own Anti-Corruption
Commission Law complete with a series of sections defining criminal
offences and prescribing punishments. This miscellany of legislation is
collected and analysed in Ostien 2007: III.

13.8 Other legal areas, especially economic law

Dividing the sharia up according to Western categories, we have dis-

cussed ‘Islamic personal law’ and ‘Islamic criminal law’. On the private
594 PHILIP OSTIEN AND ALBERT DEKKER

law side what is left over is what we have been calling ‘other Islamic ci-
vil law’, including all the rules that still govern the business relations
and commercial transactions of millions of northern Muslims on a daily
basis: ‘sale, loan, bailment, security, hire, lost property, tort, agency, co-
proprietorship to mention some of those that commonly come before
the courts’ (Report 1952: 121).
Like Islamic personal law, other Islamic civil law survived the
Settlement of 1960, when Islamic criminal law was abrogated. Again
like Islamic personal law, other Islamic civil law as applied in Nigeria
has never been codified: it is still applied, primarily in the north’s
Sharia and Area Courts, on the basis of the Maliki fiqh, no doubt modi-
fied in favour of local custom in various ways in various places. The dif-
ference is that other Islamic civil law was not protected from exposure
to the ‘English’ courts in the ways that Islamic personal law was. The
High Courts have long had concurrent original jurisdiction, with the
Native Courts and their descendants, of cases arising under all the
‘other civil’ part of ‘native law and custom’; and as we have seen, ap-
peals from the judgments of the Native and subsequently the Area
Courts in all such cases, even when governed by Islamic law, were from
1960 directed to the High Courts, not to the Sharia Courts of Appeal.
The primary reason for this difference of treatment seems to have
been a felt need in certain circles for uniformity in this ‘other civil’ area
of law:

Economic development may be retarded by a piecemeal system

of law, and it may be fostered if there is one unified system of
law which enables all persons in the territory to enter freely into
commercial transactions. [...] Laws concerning trade and com-
merce should, in any event, be uniform throughout a territory.
[...] The general law of torts or wrongs, and of restitution for
money had and received, should be uniformly applicable to per-
sons of all communities. [...] There should be a general law of
contract [...] uniformly applicable to persons of all communities,
races or creeds (Allott 1971: 6-8, quoting conclusions of the
1960 London Conference on the Future of Law in Africa).

Joined to the felt need for uniformity was the hope that the High
Courts, and the federal appellate courts above them, could perhaps
bring it about:

It is vital that [this part of Islamic and customary law] should be

moulded and developed by the superior courts so that it fits in,
both with the social needs of the country, and with the rest of
the law which is of statutory or exotic origin (Allott 1964: 192).
SHARIA AND NATIONAL LAW IN NIGERIA 595

Whether the decisions of the superior courts have had the desired effect
may be doubted. Whether any failure in this regard (as opposed to a
thousand other factors) has retarded economic development may also
be doubted. Perhaps Allott and his colleagues got the developmental
cart before the horse. In Nigeria many subjects crucial to modern eco-
nomic development – bankruptcy, banks, corporations, insurance, la-
bour, patents, professional occupations, securities, trade and commerce
with other countries and between the states, and more – are governed
exclusively by federal legislation (1999 constitution, IId Sched. Pt. I). As
the economy develops, more and more of it will come under the sway
of this legislation and of the lawyers and their common law which the
legislation will inevitably carry along with it, and related litigation will
go more and more to the High Courts only. In the meantime, most
Nigerians, not having reached that stage, are still content to order their
affairs in accordance with the law they know, which in the Muslim
north is the ‘other Islamic civil law’ we have been discussing. The pro-
grammes of sharia implementation have brought little new in this re-
gard: the venue of litigation changed from Area Courts to Sharia
Courts, and, more problematically, the redirection of appeals to the
Sharia Courts of Appeal instead of the High Courts. As we have seen
(see 13.5), the expansion of Sharia Court of Appeal jurisdiction in the
sharia states, beyond the subject of Islamic personal law, to other
Islamic civil law and to Islamic criminal law as well, has already been
declared unconstitutional by the High Courts of two states, and in the
end will probably fail altogether unless the constitution is amended.
A great deal of business in the north is conducted in open-air mar-
kets in all the cities and towns. Among the hopes expressed for sharia
implementation was that it would purify practices in these markets.

[U]nscrupulous people have filled our markets and nobody can

stop them from what they are doing. […] The above [particularly
the practices of self-imposed middlemen, discussed at length]
are the main problems facing us and we hope that as the imple-
mentation of Sharia takes shape in this State, such practices will
in time be wiped out […] because they are harmful to both Islam
and to Muslims. […] Government should ensure standard mea-
suring units in terms of weights and volume for goods to ensure
fairness in business transactions. Price and quality control task
forces should be established at various levels to supervise and
enforce strict adherence to Islamic laws on business transactions
(from memoranda to the Bauchi State Sharia Implementation
Committee, in Ostien 2007: II, 52, 91, 96).
596 PHILIP OSTIEN AND ALBERT DEKKER

These goals of sharia implementation are being pursued by various orga-

nisations that have been charged with these tasks. In Kano State, for in-
stance, the Sharia Commission is to ‘initiate and implement policies that
will sanitise business transactions in our markets and ensure orderly re-
lationships among the general public in accordance with dictates of
Islamic injunctions’ (Kano State Sharia Commission Law 2003: §4(iv)).
In Zamfara State the Markets Affairs Committee of the Joint Aid
Monitoring Group on the Application of Sharia ‘is responsible for enligh-
tening the dwellers in our markets on the provisions of Sharia in their re-
spective business transactions. It also mediates and resolves amicably
any case between buyers and sellers, ensures the use of Government-ap-
proved measures/scales in our markets, monitors any transaction in the
market and refers any breach of Sharia law in buying and selling to the
appropriate authority’ (Joint Aid Monitoring Group, undated). At least
one local government, in Yobe State, has enacted a by-law ‘to make provi-
sion for the prohibition of certain un-Islamic practices such as non-main-
tenance of standard grains measure, middlemanship and other matters
related thereto’; other matters prohibited by this law include ‘any act of
slaughtering and selling of meats of donkeys, horses, pigs, dogs and
other categories of prohibited animals’ (Ostien 2007: III, 230-233).
Obviously none of this involves new applications of sharia but attempted
purging from old applications of corrupting local custom.
We have already mentioned (see 13.5) the attempts in most sharia
states to revivify and institutionalise the collection and distribution of
zakat, with four states going so far as to make payment mandatory and
enforceable in the courts (it is not known that any such action has so
far been taken). The institutions charged with administering zakat are
variously the Ministries of Religious Affairs, the Sharia Commissions,
or, in six states, new Zakat Boards set up especially for the purpose, but
in all cases working with and through the emirate councils, the local
governments, and local committees going all the way down to village le-
vel. Good is being done. For instance Zamfara State’s Zakat Board re-
ports that between 2000 and 2005 it collected N106,855,630.63 (about
E 474,915) in zakat from which about 35,000 destitute persons bene-
fited, plus 49,590 bags of grain from which almost 124,000 benefited.
With the money the sick are being treated, low-cost housing is being
built or refurbished, small capital and equipment are being provided to
help people start businesses, marriages are being facilitated, debts are
being paid off, wayfarers are being assisted, and so on (Zamfara State
Zakat and Endowment Board 2006). Several of the new boards also
have charge of pious endowments (awqaf or wakfs), which they are to
encourage and to administer as trustees. This is a fairly recent depar-
ture: in the early 1950s Anderson found that in Northern Nigeria ‘there
SHARIA AND NATIONAL LAW IN NIGERIA 597

are no endowments or trusts of the sort termed ahbas or awqaf, except

in so far as mosques are concerned’ (Anderson 1954: 217).
Land law is a subject apart. The basic document is the federal Land
Use Act, dating from 1978, Chapter L5 of the Laws of the Federation of
Nigeria 2004. According to the explanatory note, the Act

vests all land comprising the territory of each State (except land
vested in the Federal Government or its agencies) solely in the
Governor of the State, who would hold such land in trust for the
people and would henceforth be responsible for allocation of
land in all urban areas to individuals resident in the State and to
organisations for residential, agricultural, commercial and other
purposes, while similar powers with respect to non-urban areas
are conferred on Local Governments.

There are thus ‘statutory rights of occupancy’, granted by the governors,

and ‘customary rights of occupancy’, granted by the local governments.
One might have rights under Islamic law to either of these forms of R of
O, e.g. by inheritance or by prescription. Or one might have rights un-
der Islamic law under a customary R of O, such rights being included
in the bundle the R of O itself comprises. But here an important histor-
ical fact comes in again: even under the Sokoto Caliphate, ‘the custom-
ary land law remained valid and was enforced by the councils of the sul-
tan and of the emirs’ (Schacht 1964: 86, already quoted in section 13.1
above); in the early 1950s Anderson found that ‘[i]t is in the matter of
land tenure that native law and custom has won its most decisive vic-
tory over the general ascendancy of the Shari‘a in the Muslim Emirates
of Northern Nigeria’ (Anderson 1954: 184). In other words the strict
Islamic sharia has never had much influence on land law as actually
practiced even in the Muslim parts of the North. Whether that influence
is waxing or waning at the present time we cannot say.
Finally, we come to Islamic banking and insurance, both subject to
federal regulation. Takaful is a form of insurance that is ‘sharia
compliant’.

[Nigeria’s] main takaful provider, African Alliance Insurance

(AAI) [...] began offering life and family takaful in 2003 and
quickly attracted thousands of applications. This prompted a
host of other Nigerian financial organisations to apply to the
National Insurance Commission for licences to underwrite taka-
ful products (Ford 2007).

Similarly, the Central Bank of Nigeria, responding to a growing de-

mand, has granted permission to a number of banks to offer sharia
598 PHILIP OSTIEN AND ALBERT DEKKER

compliant accounts and other products, and in doing so has showed it-
self responsive to a growing demand for this kind of banking. Nigeria’s
first ‘fully-fledged Islamic bank’, to be known as Jaiz Bank International,
has been in the works for some time, but is still trying, it seems
(October 2009), to raise the minimum capital reserve required under
the banking regulations before it can start in business.

13.9 International treaty obligations and human rights

Since 1960 all of Nigeria’s constitutions have included a chapter on

Fundamental Rights; this is a standard bill of civil and political rights
derived primarily from the European Convention on Human Rights of
1950, enforceable in the courts. Another chapter on ‘Fundamental
Objectives and Directive Principles of State Policy’, articulating broad
social, economic, environmental and other aspirations, is not justiciable.
In 1981 Nigeria also ratified the African Charter on Human and
Peoples’ Rights; the Charter was then domesticated in Nigeria in 1983,
and has now become Chapter A9 of the Laws of the Federation 2004.
This raises a point to which we shall return, which is that in Nigeria,
no treaty has the force of law domestically unless and until it is enacted
by the National Assembly, then ratified by a majority of the state
Houses of Assembly, and finally signed by the president (Art. 12 of the
constitution). Nigeria has in fact ratified or adhered to most of the
world’s human rights instruments, but in some cases domestication has
been difficult (Obiagwu & Odinkalu 2003: 229). There is a National
Human Rights Commission, mandated to ‘deal with all matters relating
to the protection of human rights as guaranteed by [the constitution, the
African Charter], the Universal Declaration on Human Rights and other
international treaties on human rights to which Nigeria is a signatory’ (§5
of the National Human Rights Commission Act 1995, now Chapter N46,
Laws of the Federation 2004).
In any case the main problem in Nigeria, as in many other countries,
is not with the rights but with their realisation. Violation of even the
most basic civil and political rights by state organs and their agents, to
say nothing of social and economic rights, is a commonplace of every-
day life throughout Nigeria. We needn’t rehearse these problems here.
At least two organisations – the U.S. Department of State and Human
Rights Watch – issue annual reports on human rights practices in most
countries of the world, including Nigeria; the sad story can be read in
those reports.27 Here we have space only to mention some of the hu-
man rights issues raised by the sharia implementation programme in
particular.
SHARIA AND NATIONAL LAW IN NIGERIA 599

Criminal law
The reinstatement of Islamic criminal law is the obvious place to start.
Three issues immediately suggest themselves. (1) In the sharia states,
parallel penal codes are now being applied, under which, for the same
crime, different punishments are prescribed for different people de-
pending solely on their religion. This seems clearly to violate the consti-
tutional ban (Art. 42) on discrimination based solely on religion. (2)
Article 42 also bans discrimination based on sex, but as we have seen
discrimination between male and female witnesses has been reinstated,
implicitly under the Sharia Courts Laws and explicitly in some of the
Sharia Penal and Criminal Procedure Codes. Notoriously, certain sorts
of evidence apply against females only; hence several women, pregnant
out of wedlock, have been convicted of zina and sentenced to death,
while the equally guilty men, denying everything, got off scot-free. (3)
The archaic punishments now reinstated seem to many to violate the
constitutional ban (Art. 34) on cruel, inhuman or degrading punish-
ment or treatment. This provision has hardly been applied by the
Nigerian courts. But courts elsewhere have held that it means, among
other things, that punishment must not be disproportionate to the of-
fence; and death for adultery, or amputation of a hand for theft of a
cow, today seem disproportionate. Lawful punishments may not be car-
ried out in an unlawful manner; and although the death penalty is law-
ful in Nigeria, its infliction by stoning, stabbing, or crucifixion should
be beyond the bounds. Some punishments have in some jurisdictions
been declared unlawful per se: the death penalty in South Africa; flog-
ging in the European Union. What of amputation of hands and other
forms of mutilation? The Nigerian courts might outlaw these if given
the chance in proper cases.
But the interesting point about all these issues is that the courts are
not being given the chance to address them, because they are not being
raised by parties with standing to do so – i.e. defendants in criminal
cases in the Sharia Courts. Most such defendants are not represented by
counsel and have no conception of their constitutional rights. Even
where counsel – in most cases themselves Muslims – do come in to de-
fend, they are not raising issues that might strike at the very heart of the
sharia implementation programme. Why they are not has been discussed
in a paper by one of the lawyers who represented Safiyatu Hussaini and
Amina Lawal (Yawuri 2007: 133, 139). Meantime, as we have seen, actual
execution of the punishments in question has been very rare, the execu-
tive and judicial officials of the sharia states, between them, finding ways
to limit the many kinds of damage this would cause.
600 PHILIP OSTIEN AND ALBERT DEKKER

Women
The classical Islamic law of personal status, the family, and inheritance,
still applied in Nigeria, discriminates in various ways against women.
These issues, some touched on in section 13.6 above, are well known
and need no further discussion here. A number of the new enactments
of the sharia states also specifically affect women. Most of these have to
do in one way or another with trying to keep unrelated males and fe-
males apart, or, where they do mix together, with trying to make the fe-
males less sexually attractive to the males. Thus, some jurisdictions
have made the hijab28 compulsory for all female Muslims ten or more
years old appearing in public. Even where no law requires it, the hijab
has become quasi-compulsory through regulations governing state insti-
tutions, including schools, and, outside such institutions, through pres-
sure exerted by hisbah groups. Attempts have been made to keep males
and females separated in taxis and buses, and to keep females off of
commercial motorcycles (all operated by men); the result of the at-
tempts of the Kano hisbah to enforce the ban there on commercial mo-
torcycles carrying female passengers has already been described. The
regulation of hawking by young girls, a matter of concern in the North
for some time because it exposes the girls to unscrupulous men ready
to pay for sex or have it by force, has in some states been tightened.
Some jurisdictions have tried, without much success it seems, to stop
social mixing of Muslim males and females at events like weddings and
naming ceremonies (also targeted by sumptuary laws as we have seen).
Whether any of this violates the human rights of the women is debata-
ble. In any case women apparently do not feel particularly oppressed by
most of it, except where it has impinged on their livelihoods or mobility
or on their traditional modes of socialising and enjoyment; there the
women have resisted or simply ignored it (Nasir 2007: 105-118). As we
noted in section 13.6, Muslim women activists have not so much ob-
jected to sharia implementation, as they have tried to work within it, to
effectuate rights of women under the sharia which ‘merely traditional
practices’ have denied them (ibid: 100-103).
One such right is the right to education; and here we come to the
case of a human rights instrument which Nigeria has ratified, but has
not yet been able to domesticate. The U.N. Convention on the Rights of
the Child (CRC) was ratified by Nigeria in 1991. The CRC’s most con-
troversial provision (in Nigeria) puts the minimum age for marriage at
eighteen years. But in Nigeria’s Muslim north particularly, girls are of-
ten married off much younger, even as early as nine or ten. This ob-
viously keeps them out of school; it also contributes to a serious public
health problem in the north, vesico-vaginal fistula, which results from
early pregnancy and child-birth. In 2003 the National Assembly took
SHARIA AND NATIONAL LAW IN NIGERIA 601

the first step towards domestication of the CRC by enacting it, over con-
siderable (male) Muslim opposition, as the Child Rights Act. Many pro-
minent Muslim women and women’s organisations, among others,
have since campaigned for ratification of the Child Rights Act by the
states. But, despite their efforts, the necessary nineteen states have still
(October 2009) not ratified.29 The fate of the U.N. Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW)
has been even worse. Although Nigeria ratified CEDAW in 1985, to date
no bill for domestication has even been enacted by the National
Assembly for ratification by the states.

Non-Muslims
What of the effects of sharia implementation on non-Muslims? In treat-
ing of this topic one must be wary of reports in the popular press, al-
lowing for the errors and exaggerations of reporters who are often ill-
trained and undisciplined and writing for a credulous public ready to
believe anything bad about Islam. Thus, for instance, early reports that
all churches in Zamfara State would be demolished and everyone made
to learn Arabic were sheer nonsense – which nevertheless did their
work of inflaming Christian alarm. One must also try to distinguish be-
tween continuing manifestations of long-standing problems for non-
Muslims, more specifically Christians, living in the northern states, and
anything new resulting from sharia implementation in particular. The
various forms of official discrimination against non-Muslims sanc-
tioned by the classical sharia have since Independence been officially in
abeyance.30 Nevertheless, for many years there have been problems,
ranging from difficulties with whether and where a church may be
built, up to periodic outbreaks of communal violence sparked off by
some incident usually involving not only religion but ethnicity and
‘place of origin’ as well. One variant of this, in Hausaland, is ‘indigen-
ous’ Hausa Muslims vs. ‘settler’ Igbo or Yoruba (or other) Christians.
In Plateau State, where there were serious outbreaks in 2001, 2004 and
2008, it is rather ‘indigenous’ Plateau Christians (from one tribe or an-
other) vs. ‘settler’ Hausa or Fulani Muslims; and so on, there are many
such problems all over the country. These problems can unfortunately
be said to be ‘normal’ right now in Nigeria (see e.g. Human Rights
Watch 2006; Ostien 2009).
Bad as all that is, the further question is, what new problems for
Christians or other non-Muslims living in the sharia states have been
added by the programmes of sharia implementation? This is less clear.
Non-Muslims are for the most part expressly exempted from the new
laws, which are frequently said by the authorities to be ‘for Muslims only’.
Most importantly, non-Muslims are not subject to the Sharia Penal Codes
602 PHILIP OSTIEN AND ALBERT DEKKER

or to the jurisdiction of the Sharia Courts (unless they consent in writ-

ing), and it appears that these rules are being strictly observed. Non-
Muslim women and girls are not subject to the rules aimed at separation
of the sexes. Sharia-related laws that do affect non-Muslims, such as the
new ways of regulating liquor and prostitution, are often approved of by
Christian leaders, and in any case are well within the constitutional
authority of the states to enact (Ostien & Umaru 2007).
This does not mean that there has not been some additional trouble for
non-Muslims in the sharia states resulting from sharia implementation,
especially in its early days when the zeal of irregular Muslim enforcers
was at a high pitch. For instance, in some places lawless attempts by self-
appointed hisbah groups to enforce new liquor laws resulted in wanton
destruction of property. Christian women sometimes suffered from at-
tempts of over-enthusiastic youths to enforce the hijab and separation of
the sexes in public transportation. In one famous case, the director of a
federal medical centre in Bauchi State imposed a new uniform of trou-
sers and hijab on his nursing staff, and sacked eleven Christian nurses
who refused to comply (they were subsequently reinstated). But most of
this sort of thing died down fairly quickly, as the authorities got the so-
cial forces unleashed by sharia implementation under better control.
Other problems are less acute. Many sharia states are spending consid-
erable sums on new programmes and institutions specifically for
Muslims, probably not balanced by proportionate spending on non-
Muslims.31 Non-Muslim access to justice may in some places have been
impeded by conversion of the old Area Courts, open to everybody, into
Sharia Courts primarily for Muslims. Nevertheless, for some time
Christians living in the sharia states have been complaining, not so
much about sharia, as about all the many other troubles with Nigeria.
The fact that non-Muslims living in the sharia states have not had to face
significant new or additional continuing burdens resulting from sharia
implementation specifically, is a second important reason (along with
non-execution of the archaic penalties being imposed on some Muslims)
why the early Nigerian clamour over sharia implementation has so com-
pletely died down. Although it continues as an official programme of a
number of northern state governments, and is still advancing on various
fronts, sharia implementation has nevertheless become largely irrelevant
to the national discourse.

13.10 Conclusion

How are the sharia implementation programmes in northern Nigeria

likely to develop in the next five to ten years? Let us begin our answer
by going back to the matter of the sentences of hudud and qisas being
SHARIA AND NATIONAL LAW IN NIGERIA 603

imposed by the Sharia Courts but never executed, the convicts instead
languishing in prison, sometimes for many years, serving time to
which they were not sentenced and never knowing their fate. How is
this outcome – acceptable to no one – likely to be resolved?
We consider three possibilities.

(i) The governors, under pressure from ardent and impatient sharia imple-
menters, will at last give their consent to execution of these sentences. The
large backlog of pending sentences will be carried out, as will new sen-
tences as they are imposed.

Probability: practically nil.

This would stir up the Nigerian and world-wide clamour all over again,
and result in all sorts of sanctions against any state that tried it. More
importantly, there is now little sentiment among Muslims even in the
sharia states for such a course. After several years of experience with it,
most see that sharia implementation, even in all the useful forms it is
taking, will not quickly cure all social ills, as many at first believed. Real
progress will require the deepening of religious knowledge and practice
among the people; the state also has much work of its own to do; and it
will take a long time. Meantime, of all the forms of sharia implementa-
tion that have been tried, bringing back Islamic criminal law has proved
least useful of all as a means of social betterment, in practice falling in
its harshest aspects only on the poor, who need help more than punish-
ment, while the richer and more powerful, despite all their evident sin-
ning, escape unscathed. Few in any social stratum want to see mutila-
tions resume or anyone stoned to death; the governors will not consent.

(ii) The sharia states will continue to muddle along under the penal legisla-
tion now in place, finding various ways to limit and mitigate the damage.

Probability: high over the near to medium term.

Outright repeal of the Islamic penal legislation so recently enacted

would be politically impossible. But three states (Borno, Gombe and
Yobe), even eight or nine years after enactment, have not yet even be-
gun to apply their Sharia Penal Codes. In other states the use of the
Sharia Courts to try criminal matters is declining, the charging authori-
ties – the police and the public prosecutors – preferring to charge even
Muslim accused persons in the Magistrate’s and High Courts especially
in serious cases. Where they do try criminal matters, the Sharia Courts,
recognising that they will not be carried out, are imposing hudud pun-
ishments less frequently than at first, finding reasons in the doctrine to
604 PHILIP OSTIEN AND ALBERT DEKKER

dispose of such cases in other ways. In qisas cases complainants are en-
couraged to accept diyah in lieu of qisas; at least one state (Kano) has
made this more attractive by enacting that the state must pay if the de-
fendant and his family cannot.
But still: there remain those large backlogs of unexecuted sentences,
the convicts still languishing in prison waiting for something to hap-
pen, and more will doubtless accumulate. What to do with these cases
is very much under discussion in the sharia states. One idea is that the
governors, in the exercise of their constitutional prerogative of mercy,
should substitute less severe forms of punishment for the ones im-
posed, or remit the punishments after some suitable time served, or
pardon the convicts completely; in fact in 2005 twenty-one persons sen-
tenced to amputation of their hands for theft were set free by the gover-
nor of Sokoto State in this way, and the same may also be quietly hap-
pening elsewhere. Another idea is that where the governors refuse to
act, the courts, or one of them, perhaps the High Court or the Sharia
Court of Appeal, should bail the convicts after some time served – pre-
sumably subject to revocation in the unlikely event that the governor
should at some point decide to execute the sentence after all.
Something like this has happened in the case of the Niger State couple,
Fatima Usman and Ahmadu Ibrahim, found guilty of zina in 2002 and
sentenced to stoning to death. They appealed to the Sharia Court of
Appeal, which admitted them to bail pending the outcome. While the
appeal was pending the jurisdiction of the Sharia Court of Appeal to de-
cide it was called into question by the High Court (see note 15 and ac-
companying text). The appeal therefore has never been decided by the
Sharia Court of Appeal, but it has also never been transferred to the
High Court. The couple are still out on bail, and they are unlikely ever
to hear from the authorities about this matter again. None of this is
very tidy, but for the time being it will probably continue.

(iii) The federal courts will rule that the penal legislation now in place is
unconstitutional. The penal law of all sharia states will revert to what
it was before sharia implementation started. All persons still in prison
under sentence of hudud or qisas will be released and no more such
cases will arise.

Probability: quite high in the not too distant future.

Consider only the problem of running parallel penal codes in the same
jurisdiction, under which different punishments for the same crime are
prescribed for different people depending on their religion. This clearly
violates the anti-discrimination provisions of the constitution. The prob-
ability that it will be challenged in the courts is increased by the fact
SHARIA AND NATIONAL LAW IN NIGERIA 605

that the burden of the discrimination falls not only on Muslims, who
might not be inclined to complain: sometimes it falls on non-Muslims,
who for some crimes can be punished more harshly under the Penal
Codes than Muslims can be under the Sharia Penal Codes (Ostien
2007: IV, 14). It is likely, therefore, that before too long somebody will
raise this issue, that it will eventually reach the federal Court of Appeal
and the Supreme Court, and that they will rule that different penal
codes for people of different religions will not do: each state must have
one and only one penal code applicable in all courts to all persons re-
gardless of their religion. Which code will that be? We may be sure that
non-Muslims will never tolerate application of the Sharia Penal Codes
to them. Furthermore, it is the Sharia Penal Codes that expressly discri-
minate on the basis of religion: for that reason they will likely be struck
down, and the Penal Code of 1960, always intended for universal appli-
cation and still the law in all sharia states, will once again cover the
whole field. When this happens, any persons still in prison awaiting ex-
ecution of sentences of hudud or qisas under the then-outlawed Sharia
Penal Codes will be released, and this problem will finally, and correctly,
have been resolved.
It will have been resolved, moreover, in a way palatable to the vast
majority of the north’s Muslims. They will have done their utmost in
the cause of sharia. The responsibility – or the guilt – for saying ‘no’
once again to the application of Islamic criminal law will fall on the fed-
eral constitution and the distant federal judges who administer it. The
judges, Muslims and non-Muslims all concurring, will give clear and
convincing reasons – reasons that in no way impugn Islamic criminal
law per se – why under the constitution the Sharia Penal Codes may not
be run in parallel with the Penal Codes and must be dropped. Muslims
will resign themselves to this as a matter of necessity under present his-
torical circumstances – there being no possibility, in the foreseeable fu-
ture, of withdrawing from the federation or changing the constitution.
Resignation will be easier because of the evident inutility, even unfair-
ness, of trying to apply Islamic criminal law in its full rigor under pre-
sent social conditions. This is moreover but a very small part of the
whole fabric of the sharia, historically often in abeyance even in
Muslim lands. Letting it go for the indefinite future once again, perhaps
with some sense of relief, the north’s Muslims will pray for better times
ahead, when, God willing, it will come to pass that circumstances will
not be so much against them.
So much for the likely fate of Islamic criminal law, which always
tends to monopolise the discussion. Two important points stand out,
which also apply to all the other, more useful, forms that sharia imple-
mentation is taking. One is the psychological and symbolic importance
of having tried so comprehensively to bring Islamic law and Islamic
606 PHILIP OSTIEN AND ALBERT DEKKER

institutions back into the governance of these large Muslim popula-

tions, after the depredations of the British and of the post-colonial era.
The other is the practical education in modern principles of governance
and politics which the continuing sharia implementation effort is bring-
ing with it.
Sharia implementation had to be tried: to work through the obsession,
to honour and reconnect with the north’s Islamic past, and to restore the
Islamic sharia to an honourable position in the Nigerian public space.
Being tried, sharia implementation is doing all those things. At the same
time, it is teaching many useful lessons all around – about how democ-
racy and constitutionalism and federalism work and what it takes to
make them work; about the real causes of social problems; about which
programmes of amelioration and improvement will go how far and what
more might be needed; and about who is serious and who is not, among
others. On all of these subjects sharia implementation has revitalised
and complicated the public discourse involving sharia, including bring-
ing in new voices, notably those of women, whose assertions of their
own Islamically correct positions against oppressive male practices are
making themselves felt. The new Islamic institutions – sharia courts,
councils of ulama, sharia commissions, zakat boards, hisbah organisa-
tions, and so on – which will still be there when the Sharia Penal Codes
pass into history, are providing useful opportunities, for many people,
for the responsible expression of Islamic learning and piety and the
beneficial application of Islamic precepts in all aspects of life.
These are all good things about sharia implementation: ways in
which it has been a positive development for Nigeria itself and for
many of its people. These good things are going some distance in their
various directions towards helping to resolve some of the ‘troubles with
Nigeria’. Unfortunately Nigeria’s troubles are legion, and, along with
the north’s most sincere Muslims, it will also take the sustained and co-
operative efforts of many other people of all religious and ethnic persua-
sions all over the country to even begin to address them. Perhaps, if it
doesn’t just ‘fizzle out’ as President Obasanjo predicted it would, sharia
implementation may at least provide good examples, so sorely needed
in Nigeria, of what can practically be done by committed public officials
working with ordinary citizens to improve the unfortunate circum-
stances in which so many of the people are living.

Notes

1 Philip Ostien taught for many years in the Faculty of Law of the University of Jos,
Nigeria; he is the author or editor of a number of works on the laws and legal institu-
tions of northern Nigeria and the programmes of sharia implementation that began
SHARIA AND NATIONAL LAW IN NIGERIA 607

there in 1999. Albert Dekker is a reference librarian with the Van Vollenhoven
Institute for Law, Governance and Development of Leiden University.
2 World Factbook: see Bartleby 2010: Nigeria. Linguists: see Lewis 2009: Nigeria.
3 Jihad: ‘struggle’ or ‘striving’, in Islam usually meant in the sense of ‘striving in the
way of Allah’, which may range from personal striving to correct one’s own faults to
armed warfare against those labeled as unbelievers.
4 Qadi: an Islamic judge charged to apply the sharia in cases brought before him.
Alkali: Hausa form of al-qadi.
5 A note on terminology: the Northern Region was sometimes called the Northern
Province or Provinces, and similarly for the South = the East + the West. The names
the British gave to their high officials in Nigeria also changed from time to time. At
the center, Governors-General of the whole country (1914-1919) became Governors
(1919-1954) and then Governors-General again (1954-1963). In the regions High
Commissioners (1900-1908) became Governors (1908-1913), then Lieutenant
Governors (1914-1932), then Chief Commissioners (1932-1951), then Lieutenant
Governors again (1951-1954), and finally Governors again (1954-1966).
6 Hudud: punishments prescribed by Allah for specific offences, namely, in Maliki law,
zina (roughly, sex outside of marriage; punishment: either one hundred lashes if the
offender has never been married or stoning to death if the offender is or has ever
been married); qadhf (wrongful accusation of zina; punishment: eighty lashes); sari-
qah (theft meeting certain conditions; punishment: amputation of the right hand for
the first offence and further amputations for subsequent offences); shurb (drinking
wine, and by extension imbibing other intoxicants; punishment: eighty lashes); hira-
bah (roughly, armed robbery; punishment ranges from amputation of right hand and
left foot up to death by crucifixion depending on circumstances); and ridda (apostasy
from Islam; punishment: death).
7 Qisas: retaliation in kind for woundings or killings: an eye for an eye, etc.
8 Ulama (sing. alim, scholar): Islamic scholars; those learned in the theology and law
of Islam and the literature, mostly in Arabic, proper to these disciplines.
9 In this quotation from Richardson, the order of the last two sentences has been re-
versed, in hopes of enhancing clarity.
10 Allahu Akbar: Allah, God, is great, or the greatest.
11 Zakat: the Islamic ‘alms’ or religious tax, payable annually, in cash or in kind, on
most forms of wealth, and meant in various proportions for the support of specified
classes of people including the destitute, the poor, those in debt, those in bondage,
strangers stranded on the way, new converts to Islam, those ‘striving in the way of
Allah’ including e.g. Qur’anic teachers, and those who administer the tax itself.
12 Hisbah: enjoining what is good and forbidding what is wrong according to the sharia;
by extension, those who enjoin and forbid.
13 The first amputation was performed on 22 March 2000, when the right hand of
Bello Buba Jangebe of Zamfara State was cut off for theft of a cow. Jangebe had de-
clined to appeal the sentence, accepting it as his just desserts under divine law. See
e.g. Nigerian Guardian of 24 March 2000. The complete records of proceedings and
judgments of the courts in the Safiyatu Hussaini and Amina Lawal cases, in English,
together with other information and analysis, are given in Ostien 2007, Vol. V.
14 This episode was reported in Abdulfattah Olajide, ‘Shariah Gains More Ground in
Yorubaland’, Weekly Trust, 15 November 2002, see http://www.corpun.com/ngj00211.
htm.
15 Mai Tangaram vs. Mai Taxi, High Court of Borno State, case no. BOM/5A/2002, rul-
ing dated 28 June 2002 (unreported), notice of appeal filed but appeal abandoned;
and Ibrahim Haruna Kuta vs. Ahmadu Galadima, High Court of Niger State, appeal
no. NSHC/MN/6A/2003, ruling dated 12 September 2004, reported in Law Report of
608 PHILIP OSTIEN AND ALBERT DEKKER

Northern Nigeria 2004, 398, appealed on other grounds, CA/A/151/2004, appeal

decided 15 March 2006, see http://courtofappeallibrary.gov.ng/index.php?option=com
_sobi2&sobi2Task=sobi2Details&catid=3&sobi2Id=325&Itemid=.
16 This and subsequent conversions of naira to euros have been calculated at the rate of
225 to 1, around which the actual rate fluctuated in October 2009.
17 The Supreme Court case is reported, see Attorney-General of Kano State vs. Attorney-
General of the Federation (2007) 3 NILR 23, see http://www.nigeria-law.org/Attorney-
General%20of %20Kano%20State%20v%20Attorney-General%20of %20the%
20Federation.htm. For the victory of the Commander and his deputy in their civil
suit, see Daily Triumph, 29 March 2007, internet edition see http://www.triumph-
newspapers.com/archive/DT29032007/right293207.html. The acquittal in the crim-
inal case was reported to one of the authors in a visit to the Kano State Hisbah Board
in March 2008.
18 The establishment clause is the first clause of the First Amendment to the U.S. con-
stitution: ‘Congress shall make no law respecting an establishment of religion….’
The U.S. Supreme Court has read this very broadly: ‘Not simply an established
church, but any law respecting the establishment of religion is forbidden. […] The
Amendment’s purpose was not to strike merely at the official establishment of a sin-
gle sect, creed, or religion. […] It was to create a complete and permanent separation
of the spheres of religious activity and civil authority.’ Everson vs. Board of Education,
330 U.S. 1, 31 (1947) (Rutledge, J., dissenting). Or, as Justice Black, writing for the
majority, said in the same case: ‘In the words of Jefferson, the clause was intended to
erect a “wall of separation between Church and State.”’ Ibid: 16.
19 Fiqh: Islamic jurisprudence; the detailed working out of the sharia and its proper ap-
plication in various circumstances.
20 Purdah: the seclusion of women, particularly married women.
21 Talak: pronouncement by the husband that he divorces his wife. No special form of
words is necessary, nor are witnesses; the mere pronouncement effects the divorce.
22 Cf. Yusuf 1982: 46-47: ‘local [customs] among the Hausa and other Moslem societies
have become a major source of Islamic law in the Northern States’ (giving many ex-
amples). Doi 1984 gives interesting details of the lives of Nigeria’s Muslims in all
parts of the country, including chapters on ‘The Life-Cycle of Hausa-Fulani Muslims’,
‘The Life-Cycle of Yoruba Muslims’, ‘Sufism and Mystical Practices in Nigeria’, and
‘Syncretism in the Belief and Practices of Muslims in Nigeria’. The ‘Izala’ movement,
very active in the 1970s and 1980s, was in many ways an effort to purge Nigerian
Islam of its syncretism, see Umar 1993 and Loimeier 1997.
23 The situation is actually more complicated than this sentence suggests, in ways it is
perhaps unnecessary to explain here: see Ostien 2007: IV, 6-7, 185-186. But the read-
er should be aware that the following discussion is subject to a variety of exceptions
and qualifications.
24 Unless it has unconstitutionally been incorporated by reference under the section on
‘General offences’ included in some codes, see discussion in 13.5 above.
25 Ta’azir offences: in classical Islamic law, offences defined and punished at the virtually
unfettered discretion of the qadi in particular cases coming before him. In modern
penal law these are defined and the punishments are prescribed by statute. Outside
northern Nigeria the word is more usually transliterated as ta’zir.
26 Diyah: compensation that may be paid to the victim of a wounding, or to certain of
the victim’s relatives in cases of homicide, if the victim or the relatives elect to forego
qisas and accept the diyah instead. Elaborate rules specify the amounts to be paid for
which types of injuries. Acceptance of diyah in lieu of qisas is encouraged; even more
meritorious is the free pardon of the perpetrator by the victim or the relatives.
SHARIA AND NATIONAL LAW IN NIGERIA 609

27 For the latest reports on Nigeria, both covering 2008, see U.S. Department of State
(2009) and Human Rights Watch (2009).
28 Hijab: a covering worn over other clothing, drawn tightly around the face and drap-
ing loosely down to the knees.
29 There is even debate among the constitutional lawyers as to whether what has been
done so far, by the National Assembly and by the states that have acted on the Child
Rights Act, amounts to steps towards “domestication” of the CRC within the meaning
of Art. 12 of the constitution at all. Our thanks to Dakas C.J. Dakas for drawing this
controversy to our attention, on the complexities of which we cannot enter further
here.
30 One example: in Tela Rijiyan Dorowa vs. Hassan Daudu 1975 NSNLR 87, the Muslim
judge of an Area Court in Sokoto rejected the testimony of a non-Muslim against a
Muslim on the ground that it was ‘not acceptable in Islamic law’. On appeal the
High Court, per another Muslim judge, reversed, holding that under Maliki law the
evidence of a non-Muslim against a Muslim is acceptable in all cases of necessity,
and in Nigeria ‘the necessity […] has always been with us. This is because this coun-
try […] is not a Muslim country but a country where a large number of its inhabitants
are Muslims. Business transactions are bound to occur and have always been occur-
ring between Muslims and non-Muslims. Equally disputes leading to litigations of
Muslims against non-Muslims, as in this case, and vice versa must happen and have
always been happening. In a large cosmopolitan community as exists in Sokoto enga-
ging in a multitude of commercial transactions it would be impossible to do justice
in litigation if a distinction is drawn on the religion a witness adheres to before he
could give evidence in a given case. It would [also] be unconstitutional for any law en-
forced in this country to provide for the rejection of any witness because of his reli-
gion’ (quoting Art. 28(1) of the 1979 constitution prohibiting discrimination on the
basis of religion).
31 To take the extreme case of Zamfara State: there is a Ministry of Religious Affairs
dealing almost exclusively with Muslim matters, including the organisation of
Islamic preaching and teaching across the state, a Council of Ulama, a Sharia
Research and Development Board, a Qur’anic Recitation and Memorization Board, a
Religious Preaching and Establishment of Jumu’at Mosque and Idi Praying Ground
Commission, a Hisbah Commission, and a Zakat and Endowment Board (all to be
documented in forthcoming volumes of Ostien 2007). All of these have their own of-
fices, vehicles and other equipment, paid staffs, and operating budgets.

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14 Towards comparative
conclusions on the role of
sharia in national law

Table of contents
14.1 Introduction 615
Preliminary analysis 615
Different uses of the term sharia 615
The essentialist trap 616
‘Structural death’ or ‘incorporation’ of sharia? 617
Not an overview of human rights violations 618
Structure of the chapter 619
14.2 Understanding the present by the past 619
1985 up to the present: taking stock of recent developments 620
1965 to 1985: the rise, flowering and effect of the Islamic
revival in law 621
1920 to 1965: decolonisation, developmental ambitions of
new states, and their limits 622
1800 to 1920: European expansion, modernisation, colonial
pluralism, and the rise of nationalism 623
Back to the present 625
14.3 Concerns and issues, preliminary findings 626
Supremacy of sharia 627
Legal status of women 631
Cruel corporal punishments 632
Violations of human rights 634
14.4 Comparing and ordering national legal systems 635
Puritan orientation towards classical sharia 636
Large middle group 637
Secular system 643
14.5 Governance 644
Sharia policy in the broader context of governance 644
State, puritans and politics: the clashes within… 645
The complex relationship between sharia and custom 647
Attitudes of the West 649
The long and winding road to justice 650

Notes 652
Bibliography 653
TOWARDS COMPARATIVE CONCLUSIONS 615

14.1 Introduction
Preliminary analysis
This chapter draws some preliminary conclusions from the country stu-
dies. It does not yet attempt to present a comprehensive analysis of all
issues addressed in the country studies. More extensive work is needed
to expose and analyse the rich harvest of these studies. A publication in-
cluding full comparative analysis is planned for the near future.

Different uses of the term sharia

Many people assume and propagate that sharia is a uniform thing, a
fixed, unchangeable set of norms that is binding upon all Muslims. On
the other hand, we can all see a diversity of schools and interpretations
of Islam. In section 1.2 it was suggested that this contradiction stems
from conflating the different ways in which the term ‘sharia’ is used.
The twelve country studies have illustrated the co-existence of these dif-
ferent uses of the term sharia beyond any reasonable doubt. Whereas
sharia in Saudi Arabia equals a set of puritan interpretations, which
have kept the legal status of women quite similar to the times when its
rules were developed by the classical scholar al-Hanbali, in Egypt,
Morocco or Indonesia sharia manifests itself quite differently, for exam-
ple in moderate, contemporary interpretations which provide for a bet-
ter legal position of women in marriage law.
The chapters provide abundant historical evidence of shifts in the in-
terpretation of sharia as well as of a great variety in orientations both
among and within national legal systems. To pick just one example, we
trace Iran one century back, when it witnessed a movement that culmi-
nated in the Constitutional Revolution of 1905-1911.

Mirza Mohammad Hossein Na‘ini (1860-1936), the most high-

ranking cleric to support the movement, provided for instance
religious arguments for the rejection of absolutism and a de-
fence of constitutionalism. In contrast, the main clerical oppo-
nent of the constitution, Sheikh Fazlollah Nuri, argued that
ideas of democracy and freedom, the reforms advocated by the
constitutionalists, and the establishment of a parliament to enact
legislation, were in contradiction with Islam. (Mir-Hosseini in-
tra, see 8.1)

The common assumption that sharia is binding, i.e. that Muslims are
exclusively subject to classical sharia, is also based on misconceptions.
This book illustrates that since the early Islamic states of the eighth and
ninth centuries sharia always existed alongside of other normative
616 JAN MICHIEL OTTO

systems which could be as binding as or even more binding than parti-

cular versions of sharia. Whilst religious scholars have always argued
that God’s divine law is binding upon believers, in practice the applica-
tion of the doctrine has often been made subordinate to other norms,
for example to the state’s definition of the public interest, or to local
custom. This is also the case in states that are supposed to have ‘com-
pletely’ islamised their laws, like the Sudan.

At present, the Sudan possesses a legal system that is charac-

terised by a high degree of legal pluralism. The heritage of the
common law is, despite the ups and downs of twenty years of
Islamisation efforts, still clearly visible in two important aspects:
first of all, certain laws of the time of the condominium are still
valid, and, secondly, more recent legislation can be traced back
to the condominium in terms of organisation and wording.
Most significantly, despite efforts of the Bashir government to
marginalise it, customary law is still of major importance in the
rural areas of the Sudan. It is estimated that as much as 80 per
cent of all cases in the Sudan are judged in accordance with cus-
tomary law. (Köndgen intra, see 5.10)

The essentialist trap

Misconceptions about the ‘unchangeable’ and ‘binding’ nature of sharia
are not just isolated opinions. They are indispensable building bricks of
an essentialist perspective, which conceptualises ‘the sharia’, ‘the
Islamic law’, ‘the Islam’, the Muslim people’, ‘the Muslims’ as fixed
and delineated entities. In this perspective, particular provisions in
authoritative texts are held to represent the essence of a whole Islamic
civilisation, an Islamic culture, and a living Islamic legal system. Such
essentialism is, in the first place, the trademark of puritans in the
Muslim world. In addition, it provides the main rationale for
Islamophobia in the West. The simple reduction of the values and
norms of millions of people to a few daunting notions, is a familiar tool
in the discourse of ethnic politics. Clearly, essentialists are not im-
pressed by the fact that such reduction often leads to generalised as-
sumptions – for example, ‘women do not work under Islam’ as Ibn
Warraq put it in Why I am not a Muslim – which are in stark contrast
with transparent social realities.
The puritan discourse of how sharia has been incorporated in na-
tional law, is equally essentialist: the incorporation has been all wrong,
corrupt and Western, and only complete replacement with ‘true sharia’
TOWARDS COMPARATIVE CONCLUSIONS 617

can bring salvation. As explained in section 1.5, this is only one of sev-
eral ways to look at the incorporation of sharia.

‘Structural death’ or ‘incorporation’ of sharia?

A different view of incorporation holds that the sharia’s actual struc-
tures of authority – including the jurisconsult (mufti), the judge (qadi),
and the law professor (sheykh) – and the discursive and cultural prac-
tices that had always existed within the sharia, met their ‘structural
death in the nineteenth and early twentieth centuries’ (Hallaq 2009: 15-
16). For those who have been worried about the recent expansion of
sharia, it is perhaps surprising to learn from a leading academic scholar
in this field that sharia, as an organic system, is no more; in his pre-
vious work Hallaq (2003) found this an understandable reason for
‘Muslim rage’. His analysis is shared by Feldman who writes about the
sharia: ’Most devastating, the one institution that historically played a
central role in establishing and maintaining the rule of law in Islamic
states has been destroyed’ (Feldman 2008: 126). He deplores this big
role reversal, which transferred final authority in legal matters to the
state, calling it plainly a ‘disaster’ (ibid: 7).
The country studies in this book confirm that most Muslim states –
with the exception perhaps of Saudi Arabia – have indeed replaced
those age-old structures and practices with new legal institutions which
are shaping and reshaping the legal rules of the present. Indeed we
could conclude with Cammack that ‘[T]he acquisition by the modern
state of a virtual monopoly over law-making presents the Islamic legal
tradition with one of its most basic challenges’ (Cammack 2005: 190).
At the same time, the vast majority of contemporary Muslim-majority
states, confronted with the imposing heritage of sharia, decided to pre-
serve important elements. They probably realised that this also is what
most of their citizens prefer and expect. In Who speaks for Islam,
Esposito and Mogahed (2007) confirm on the basis of large-scale opi-
nion polls, that there is widespread support ‘for sharia in the Muslim
world’ (Esposito & Mogahed 2007: 35). However, the desired sharia
seems not to be of the classical and static type, and does not fully de-
pend on the old structures of authority. For according to Esposito and
Mogahed, the Gallup data demonstrate that clear majorities of respon-
dents throughout the Muslim world find that women should have the
same legal rights as men (ibid: 51). Generally, the support for democ-
racy and human rights is also significant (ibid: 47). Muslims seem to
entrust key decisions in law and governance to the ‘new’ legal institu-
tions of the state, rather than to the old structures of sharia authority:
618 JAN MICHIEL OTTO

Significant majorities in many countries say religious leaders

should play no direct role in drafting a country’s constitution,
writing national legislation, drafting new laws, determining for-
eign policy and international relations, or deciding how women
dress in public or what is televised or published in newspapers.
Others who opt for a direct role tend to stipulate that religious
leaders should only serve in advisory capacity to government of-
ficials. (Esposito and Mogahed 2007: 50)

In section 14.5 we will further explore how governments, in matters of

incorporation of sharia, are often forced to steer a middle course be-
tween the main opposing forces and their discourses, namely puritans,
religious scholars, tribal and community leaders, and human rights
critics at home and abroad. Struggles and negotiations are conducted in
several governance arenas, of which the ‘new’ legal institutions, govern-
ment, parliament, judiciary, and, last but not least, the bureaucracy, play
crucially important roles. It remains here to say that the preservation of
important elements of sharia, whether in the puritan or moderate form,
continues to be a factor which cannot be ignored in any discussion of
legal systems in most Muslim countries.

Not an overview of human rights violations

The country studies in this book sadly confirm the well-known fact that
in most developing countries violations of human rights occur fre-
quently and systematically. Up-to-date information on such violations is
available from websites and reports of monitoring committees of inter-
national human rights treaties, of governments and non-governmental
organisations like Amnesty International, Human Rights Watch, or
Freedom House. However, unlike many assume, violations in Muslim
countries often have little to do with sharia. Abiad (2008: 173-175) even
concludes on the basis of another comparative research of Muslim
countries, that ‘it is not Sharia which is preventing the implementation
of human rights’, but a ‘lack of political will’ of the governments (ibid:
173). In contrast, Abiad argues, ‘the very nature of Sharia demonstrates
the potential of reform in the interest of human rights’ (ibid: 173).
Our study finds that a number of violations is directly related to
norms and practices based in Islamic legal traditions. The fact that si-
milar violations elsewhere may be based on Christian, Hindu, Buddhist
or other convictions and ideologies, does not diminish that relation. In
many cases, such human rights violations are condoned by the state,
and in certain cases they are even officially justified by sharia-based
state law.
TOWARDS COMPARATIVE CONCLUSIONS 619

Although this book does not systematically list human rights viola-
tions, as there is no need to reiterate the existing reports, the authors’
chapters are thoroughly informed, if not motivated by the said con-
cerns. In our probing of national law, we have, often implicitly, explored
and assessed the human rights protection systems available in the re-
spective countries. It is in view of the sharia-related violations of human
rights that this study has defined four areas of main concern (see 1.3).
Discrimination of women, freedom of religion (apostasy), and cruel cor-
poral punishments are among the concerns investigated. Other impor-
tant concerns, for example the legal position of non-Muslims and non-
orthodox Muslims, of atheists, and of homosexuals, could not be in-
cluded in this study.

Structure of the chapter

Following these words of introduction, the second section (see 14.2) will
summarise historical changes in the relationship between sharia and
national law. The section will start with developments in most recent
decades, and then unfold the trends and changes which took place in
relevant historical periods, going back in time. In section 14.3 we will
consider the law presently in force in the twelve countries under review
and draw preliminary comparative conclusions about the four concerns
identified in the introduction, i.e. the supremacy of sharia; the legal sta-
tus of women; degrading corporal punishments; and the compatibility
of sharia with human rights. The next section (see 14.4) will compare
the twelve countries under review in respect of the degree to which
sharia-based rules, especially those of a puritan orientation, have actu-
ally been incorporated in their respective legal systems. The final sec-
tion 14.5 will look at the incorporation of sharia as a problem of govern-
ance. It will consider several aspects of governance: how has the state
been incorporating sharia amidst many other concerns with develop-
ment and governance; the pressure of puritan politics and the religious
establishment of scholars; customary law and its complex relationship
with sharia; attitudes of the West; and, in conclusion, it will look at the
conditions under which the relation between sharia and national law
may further develop on the long and winding road to justice.

14.2 Understanding the present by the past

The twelve country chapters in this book examine historical changes

and trends in the relationship between sharia and national law. For the
purpose of comparison they use a common periodisation. Section 1.6
explains why the years 1800, 1920, 1965 and 1985 were selected as
turning points.
620 JAN MICHIEL OTTO

1985 up to the present: taking stock of recent developments

One of the most striking findings of this study is that the first wave of
stringent islamisation of law, which took place between 1972 and 1985
in no less than four countries, was not followed by a similar second
wave. As the country studies demonstrate, since the mid 1980s core
countries of the Islamic revolution such as Iran, Pakistan, the Sudan –
as well as Libya – have shown second thoughts about some of their
early legal reforms. Actually, most of the countries under review have
shown a sense of moderation, by either rolling back on some of the ear-
lier reforms (Iran), or moving – slowly or rapidly – towards constitution-
alism (Saudi Arabia, the Sudan, Afghanistan, Turkey), continuing liber-
alisation of marriage laws (Egypt, Morocco, Pakistan), restraint in the
execution of cruel corporal punishments (Pakistan, Malaysia, Nigeria),
significant progress in democracy and human rights (Indonesia), or just
maintaining the status quo (Mali). Their record in ratification of human
right treaties confirms this trend (see 14.3).
In Afghanistan, the puritan Taliban regime was replaced with a con-
stitutional regime, though by military force. In Indonesia, after
Suharto’s fall in 1998 a regime emerged, which was much more de-
voted to the rule of law, democracy and human rights. Liberal reforms
of marriage law were notably carried through by innovative legislation
in Egypt (2000) and Morocco (2004), by amendments of the civil code
of Iran (see 8.6), and by case law in Pakistan (see 9.6). The expansion
of sharia criminal law in particular, which had caught worldwide atten-
tion in 1979 (Pakistan) and in 1983-1984 (the Sudan), lost much of its
practical application. This became clear also in North Nigeria, where
sharia criminal law had been introduced only in 2000/2001. In Iran
the orthodox fervor of the revolution and its massive support base have
declined over the last decade; even the conservative Council of
Guardians had to tolerate a more pragmatic body above it. Saudi-Arabia
announced a major judicial reform in 2008 and appointed its first fe-
male cabinet minister in 2009.
Despite this evidence of moderation, there were also some signs of
reverse trends. The most evident examples include: the introduction of
retribution punishments in Pakistan (1997); the rolling back of mar-
riage law reform in Malaysia (1994); the abovementioned introduction
of sharia criminal law in Northern Nigeria (2000) and in other sub-na-
tional entities, including Indonesia’s remote province of Aceh. In Iran,
as Mir Hosseini describes (see 8.6), at the time of writing parliament is
revising a conservative draft Family Protection Law, which women’s
rights defenders have chosen to call an ‘Anti-Family Bill’, and a bill
making apostasy a criminal offence.
TOWARDS COMPARATIVE CONCLUSIONS 621

On balance, however, trends of moderation and gradual liberalisation

seem to outweigh the trends in opposite direction. This conclusion goes
against the publications of influential academics such as Huntington
and Lewis, and strongly suggests that the alarmist report published by
Freedom House in 2005 stating that the world in the last 25 years has
witnessed the rapid replacement of liberal Western law by extreme sha-
ria, is at best incorrect (Marshall 2005).

1965 to 1985: the rise, flowering and effect of the Islamic revival in law
The remarkable Islamic ‘Revolutions’ of Iran and Pakistan (1979), and
the Sudan (1983) were the result of both domestic as well as interna-
tional processes. Development policies had been rather unsuccessful in
those countries. The centralised, authoritarian, mostly socialist, ideology
of the 1960s was showing cracks, and so were the reputations of ruling
political elites. Governments and politicians felt a strong pressure from
traditional elites, such as religious scholars and tribal chiefs, and had to
respond, even if only for tactical reasons. During this period religious
scholars and puritans made their voices better heard throughout the
Muslim world, and in Iran under Khomeini the clergy even seized
power.
The international impact was tremendous, especially in the Muslim
world. Islamists everywhere were encouraged to gear up their opposi-
tion against governments. Their puritan ideology featured three ele-
ments: a broad and bitter critique of the government in power; an out-
spoken dislike of the West because of its political, military, and econom-
ic dominance and of what is seen as its moral decadence; and a
competing governance model, i.e. the ‘Islamic state’, which should ‘in-
troduce the sharia’ and replace ‘Western law’. General Zia-ul-Haq, who
seized power in Pakistan in 1979 and General Numeiri, who had long
been in power in the Sudan, both sensed the legitimising effects of this
ideology, and decreed islamisation of law.
Because Islam in most Muslim countries is Sunni, whereas Islam in
Iran is Shii, most puritan movements were more open to Sunni mis-
sionary movements. These were often sponsored by Saudi Arabia, while
the Egyptian Muslim Brotherhood served as a model for political pro-
grammes and organisational methods. The aversion of the Brotherhood
and similar movements to the West dated back to the times of its
founding in 1928 by Hassan al-Banna; only a while ago most Muslim
countries had been under European colonial rule. After struggling for
independence they were liberated from foreign rule, and yet many felt
that Western domination had still not disappeared.
622 JAN MICHIEL OTTO

1920 to 1965: decolonisation, developmental ambitions of new states, and

their limits
In this period colonial rule came to an end, with a first wave of inde-
pendence of Muslim countries in the 1920s, and a second after 1945.
Modernisation, or ‘development’ as it came to be called after 1950, be-
came a declared goal for almost all new governments. Reforms in the
Muslim world were sometimes quite radical.

[I]n 1920 […] the Ottoman Empire collapsed and the Turkish
Republic rose from its ashes. The founder of the Republic,
Kemal Atatürk, tolerated the continued existence of Islamic law
in the Republic for only a very short period of time. Especially
during the period 1924-1929, a number of voluntary receptions
of codes of law from Western countries gave Turkey its civilian,
secular character. The Constitution of 1924 confirmed the prin-
ciple of laicism as a key foundational principle of the Republic.
After the 1930s, the influence of the shari’a on national law eva-
porated. (Koçak intra, see 6.10)

Inspired by the Turkish example, strong modernist rulers, such as Reza

Shah in Iran and King Amanullah in Afghanistan, also distanced them-
selves from the religious establishment and classical sharia in order to
create strong nation-states with modern legal systems. In Egypt, the
first post-independence cabinets opted for more gradual modernisation.
The same goes for Morocco, which had become a French Protectorate
in 1912. In the Arab paeninsula King Abd al-Aziz was building the na-
tion-state of Saudi Arabia, having just united, as Van Eijk puts it ‘the
cosmopolitan Hijaz’ in the West ‘with his own conservative Wahhabist
followers in the Najd’ (see 4.2).
From the 1950s onwards, almost all newly independent states em-
braced the ideology of development, cherishing the twin goals of na-
tion-building and socio-economic progress. Consequently, countries
such as Egypt, Indonesia, Pakistan, the Sudan, Malaysia, Mali, Morocco,
and Nigeria, also set out to build for themselves a modern national legal
system, as an instrument for social transformation. Especially after
World War II, socialism, with its atheistic standpoint, exerted much in-
fluence in developing countries. ‘Arab Socialism’, emphasising equality
– also between men and women – became a dominant ideology in the
Middle East under the leadership of Egypt’s President Nasser. Under
the new nationalist but authoritarian regimes, the displacement, natio-
nalisation and reform of sharia, which had started in the nineteenth
century (see below), were accelerated. Nasser, for example, closed the
TOWARDS COMPARATIVE CONCLUSIONS 623

religious family courts in 1955, placing jurisdiction for marital and in-
heritance cases under the umbrella of a unified, national judiciary.

[…] the Nasser government saw the existence of the separate fa-
mily courts as a legacy of Ottoman colonisation […]. (Berger and
Sonneveld intra, see 2.2)

The religious scholars who had once been the leading authorities of
sharia, found themselves in a third-rank position; tribal and community
leaders, who had been in charge of customary law for so long, were also
marginalised.
However, by the mid-1960s it appeared that many states had
achieved less security and socio-economic development than they had
hoped for and promised. The fact that leading politicians, civil servants
and army officers used their public positions for private gain, began to
create widespread resentment. Also, government’s attempts to unify
and modernise sensitive areas of law, such as family law and property
law, bringing them in accordance with rule-of-law standards, caused
considerable resistance (Allott 1980). Ethnic conflicts, separatist move-
ments, military coups and other conflicts threatened the stability of
many young states.
Although modern legislation existed on paper, its implementation
and enforcement proved disappointing. As the people expressed dissa-
tisfaction with their governments, traditional leaders saw opportunities
to regain lost powers. Many people loosing faith in the state resorted to
the mosque and the imam, even if only for Friday prayers, for mar-
riages, burials, and rituals. Prominent religious scholars, like the
Iranian Ayatollah Khomeini, bided their time in seminaries. Perhaps
the time was ripe for a successful counter-movement against the
changes that had begun to overtake the Muslim world more than 150
years earlier.

1800 to 1920: European expansion, modernisation, colonial pluralism, and

the rise of nationalism
When Napoleon and his famous mission arrived in Egypt in 1798, sha-
ria had been the prevailing legal system for more than thousand years
(see 1.6). The Ottoman Empire had carried on this tradition throughout
the Middle East for centuries. But around 1800 processes of rapid mod-
ernisation were set in motion under the influence of European expan-
sion, and ‘[T]he whole complex edifice that supplied religious authority
in Islam started to crumble’ (Abou el-Fadl 2007: 35).
The introduction of European legal concepts took place in two ways.
In the Ottoman Empire, Egypt and Persia it was a matter of deliberate
624 JAN MICHIEL OTTO

efforts by local elites and voluntary reception, whereas in Asia and

Africa the process occurred rather through colonial legislation and adju-
dication. Colonial expansion of European law occurred in the countries
under review which are today known as Indonesia, Malaysia, Pakistan
as well as Mali, Morocco, Nigeria, and the Sudan. Indigenous rulers,
chiefs, and religious office-bearers were incorporated in colonial struc-
tures led by European non-Muslims, and thus moved to a secondary
position.
The advance of modern law also sealed the fate of classical sharia.
The Tanzimat reforms in the Ottoman empire introduced large scale co-
dification in all important areas of law. Secular courts were introduced
to adjudicate cases on the basis of national law codes. Meanwhile mod-
ernist religious scholars like the polyglot al-Afghani and Muhammad
Abduh in Egypt – which was still under formal Ottoman authority –
proclaimed the reopening of the gate of free interpretation of sharia (ij-
tihad), and prepared for cautious codification and modernisation of
sharia-based marriage law.
Meanwhile, in the British, French and Dutch overseas territories, co-
lonial governments enacted a massive amount of new legislation, which
had nothing to do with sharia. New secular courts were established,
whilst sharia courts and other indigenous courts were regulated and re-
stricted. In areas, where European law overlapped with sharia or cus-
tomary law, new forms of mixing took place. In Britain’s colonies an en-
lightened ‘Anglo-Muhammedan’ law emerged through legislation and
case law. In Indonesia and other colonies, the government elevated ‘cus-
tomary law’ to serve as the law of the indigenous population, whereas
sharia was recognised only in so far as it was part of living customary
law. So, in different ways sharia law and institutions were restricted or
even pushed aside. A citation from the chapter on Nigeria gives a good
example of the advance of European law.

Public law, including Orders in Council of the Government of

Britain (in the case of Nigeria’s colonial constitutions) and some
of the enactments of the Governors-General, was of course
‘English’. The British also enacted various other laws specific to
Nigeria, including penal laws, and imported their statutes of
general application, their doctrines of equity, and their common
law. English law was applied in English courts staffed by British
judges, according to British rules of procedure and evidence. On
its private side, English law was originally intended for applica-
tion primarily to non-natives, and most by far of all cases com-
ing before Nigerian courts – upwards of 90 per cent, including,
for a long time, criminal cases – were handled in the Native
Courts according to native law and custom. The proviso was that
TOWARDS COMPARATIVE CONCLUSIONS 625

no native law or custom should be enforced which was ‘repug-

nant to natural justice, equity and good conscience [as deter-
mined by the British] or incompatible either directly or by neces-
sary implication with any [English] law for the time being in
force’ (Keay & Richardson 1966: 233-238). Under this rule the
penalties imposed in the Native Courts, in particular, were
quickly brought under control. Mutilation – in the North
whether as hudud or as qisas – was abolished; death sentences
had to be carried out in a humane manner (Milner 1969: 263-
264). Various means were used to enforce the repugnancy rule,
including supervision of the Native Courts by British adminis-
trative authorities and finally, in 1933, rights of appeal from the
Native to the English courts. (Ostien intra, see 13.1)

A remarkable exception to these patterns of European legal expansion

was Saudi Arabia. No Western power had the ambition to conquer this
vast desert land, so that the power of the ruling Saudi tribes could re-
main connected with radical-puritanical Wahhabi doctrine, as it had
been since the eighteenth century. Under Wahhabi influence classical
sharia prevailed unimpaired as law.

Back to the present

It is safe to say that the main historical turning point in the relation be-
tween sharia and national law occurred as the state in the nineteenth
and twentieth century appropriated the leading part in legal develop-
ment, a role hitherto played by the religious scholars (ulama). As ex-
plained in the introduction, before 1800, in the Muslim world, a ruler’s
power to make laws was derived from the sharia-principle of siyasa,
which required that the laws remained within the limits of sharia (see
1.6). The authority to decide whether this was the case, rested, accord-
ing to sharia, with the scholars – a system which is often regarded as
the classical Islamic version of constitutional checks and balances
(Feldman 2008). This led to a situation in which legal systems in the
Muslim world consisted of two branches – scholars’ law and state law –
which could come together at the top in the Sultan-Caliph, and below
him in state-appointed qadis and muftis.
After the Ottoman reforms and the European colonial administration
of justice had prepared the ground for the take-over by the nation-state,
from 1920 onwards a growing number of independent Muslim states
began to introduce their own policies regarding incorporation. It was
not their main concern, though. The governance challenges for the
newly independent, developing, Muslim countries were daunting. From
the 1950s until the 1970s separatism, civil wars, and military coups
626 JAN MICHIEL OTTO

were frequent. Despite the fact that many states succeeded in stabilising
society, and making progress in many areas (agriculture, industry, edu-
cation, public health), partly with the help of oil revenues, much went
wrong too.
There seems to be consensus on the idea that in that period most de-
veloping states suffered from major governance failures. Political elites
made policies for the common people without giving them a political
voice. Bureaucracies blocked and frustrated private entrepreneurship.
Individual rights were systematically subordinated to the public goods
of ‘stability’ and ‘development’. Politicians who now had the power to
manage vast public funds became self-serving, and corruption in-
creased. Most countries were unable to maintain effective courts, which
were to control illegal practices and provide remedies. And, finally,
there was a serious underestimation of people’s attachment to tradition
in the form of symbols, structures and authorities of religion and
custom.
In response to the above-mentioned governance failures a range of
domestic and transnational actors, began to promote democratisation,
privatisation, human rights, anti-corruption measures, and rule-of-law
policies, all with different motives. Also part of this counter-movement
were the ulama and their supporters, who called for religious and cul-
tural authenticity. The latter translated into the broad transnational
trend often indicated as the Islamic resurgence or awakening, or the ad-
vent of political Islam. While the diversity among islamist movements
was enormous, most of them shared the twin goals of introducing an
‘Islamic state’ as well as ‘the sharia’, instead of the pre-existing constitu-
tions and laws which were considered ‘bad’ and ‘Western’. The next
section discusses the effects of the efforts to islamise national law, since
Iran’s ‘Islamic revolution’ of 1979. How did the Muslim countries un-
der review deal with the various demands to radically change their con-
stitutional, family and criminal laws? And are the alarmist assumptions
about the islamisation of law, so common in the West, actually
justified?

14.3 Concerns and issues, preliminary findings

In the introduction I identified four widely shared concerns about isla-

misation of law, and divided them in concrete issues. This section will
consider what preliminary conclusions can be drawn about these con-
cerns and issues on the basis of our country studies.
TOWARDS COMPARATIVE CONCLUSIONS 627

Supremacy of sharia
Scope
To which extent has sharia influenced the national legal systems as a
whole? Most country studies demonstrate clearly that most areas of law
have not been pervaded by sharia-based law. Saudi Arabia is the main
exception, followed at a distance by Iran, and then perhaps by the
Sudan. The majority of moderate governments strives to ensure that na-
tional law meets modern socio-economic needs. This has meant that in
many areas governments did not replicate classical sharia. Perhaps sur-
prisingly, Ayatollah Khomeini himself shared this view.

In order to facilitate legislation considered to be socially neces-

sary, even if it was in conflict with sharia, Khomeini gave a fatwa
in 1981 granting parliament the authority to proclaim such legis-
lation with absolute majority votes. Subsequently, the Guardian
Council ignored this fatwa and refused to approve much legisla-
tion promulgated on the basis of it. Khomeini responded in
1984 with another fatwa authorising parliament to create legisla-
tion based on the Islamic principles of social necessity (zarurat)
and expediency (maslahat) with a two-thirds majority.
(Mir-Hosseini intra, see 8.3)

Khomeini had written that the Leader’s mandate is absolute,

that he can even order the suspension of the primary rules of
Islam (for example regarding prayer or pilgrimage) if the inter-
ests of the Islamic state (maslahat-e nezam) demand it. Clearly,
when Khomeini had to choose between the sharia and the survi-
val of the state, he chose the latter (Arjomand 1992: 156-158).
(ibid, see 8.4)

In addition, it becomes clear that in eleven of the twelve countries the

impact of the colonial legal heritage of civil law and common law has
remained substantial (see Table 2 in 1.4). This does not apply only to
‘sharia-neutral’ areas of law – such as environmental law, labour law or
telecommunications law, where no influences of fiqh-texts are found –
but also to the politically ‘delicate’ areas where fiqh has traditionally
played an important role, such as family and inheritance law. Harding’s
observation about Malaysia that

The constitution and the institutions of the common law have

indeed provided the means whereby accommodation between
two fundamentally contradictory conceptions of legality has been
achieved. (Harding intra, see 11.10)
628 JAN MICHIEL OTTO

could also apply to legislation and the rulings of supreme courts in

other common-law countries as well as in civil-law countries. In Egypt,
a civil law country, the scope of sharia, potentially widened by the 1980
amendment of Article 2 of the constitution, is in fact delineated by the
Supreme Constitutional Court, which

has laid down a few important ground rules: first, it is the only
court allowed to rule on (in)compatibility of Egyptian legislation
with the sharia; and, second, only legislation implemented after
1980 must conform to the principles of the sharia.
Furthermore, the Constitutional Court holds a restrictive view of
what is encompassed by obligatory rules of sharia and, conse-
quently, accords the legislature a wide margin of legislative free-
dom. (Berger and Sonneveld intra, see 2.4)

Territory
To which extent has sharia-based law been enacted at sub-national le-
vels, notably in specific states, provinces or districts? In the 1990s
waves of democratic decentralisation led to the empowerment of sub-
national entities – states of a federation, provinces, districts, towns.
Some of them decided to enact sharia-related regulations, usually to
promote Islamic ‘virtue’ in religious and social behaviour. Certain states
in federations such as Malaysia, Pakistan, and Nigeria, as well as pro-
vinces and districts in Indonesia issued regulations with criminal provi-
sions, prescribing dress codes for women and men, or compulsory les-
sons in religion. Some prohibited the consumption of food and drinks
during Ramadan, the consumption of alcohol, or ‘indecent behaviour’,
notably extramarital sex. On the latter, a much disputed regulation in
Aceh, Indonesia, even put a death penalty by stoning, in September
2009. In reality such regulations are not systematically enforced, in the
first place because it would be practically impossible to do so, and sec-
ondly because the legal basis of such regulations is often contested. As
national legal institutions are usually slow and reluctant to interfere in
such cases, issues are mollified, and legal uncertainty prevails.

Basic norm
To which extent have constitutions introduced sharia as the highest or
basic norm of legal systems? In five of the twelve countries, the consti-
tution holds provisions which establish an ‘Islamic state’ (see Table A.2
in Annexe). In seven of the twelve countries, constitutional articles de-
clare Islam to be the state religion (ibid). Six countries proclaim sharia
as ‘a source’ or even ‘the source’ of the national legal system or declare
that all legislation must be tested for its accordance with sharia (see
Table A.3 in Annexe).
TOWARDS COMPARATIVE CONCLUSIONS 629

However, the suggestion of sharia supremacy created by such provi-

sions must be questioned, since at the same time, many provisions in
the same constitutions testify to supremacy of the constitution itself
and of the rule-of-law standards laid down therein. As a result, constitu-
tional laws in Muslim countries often seem to have a ‘dual basic norm’.
This gives the national legal systems of these countries an inherently
ambiguous character.

Legal decision makers

This issue is about who ultimately decides the rules in a legal system:
religious scholars or the office holders of the state? Iran provides us
with the only example of a national legal system where ultimate deci-
sions are the prerogative of a religious scholar, the Leader; other impor-
tant state offices in Iran must also be fulfilled by religious scholars,
such as six of the twelve seats of the Guardian Council which can veto
laws which parliament has approved, as well as the chief of the
Supreme Court. In Saudi Arabia religious scholars often enjoy a veto in
the legislative drafting process; especially the fatwas of the Council of
Senior Ulama and of influential government-employed ulama have ‘a
near legislative effect’ (see 4.5). Judicial office is accessible only to grad-
uates from the sharia colleges. Sharia legal opinions (fatwa) by juriscon-
sults (mufti) are important constitutive elements in the interpretation of
the law.
As to the other ten countries, most important decisions in the respec-
tive legal systems are made by office holders of the state instead of reli-
gious scholars.

Islamic codification
The issue here is twofold, the first whether the area, in which sharia is
most influential, i.e. family law, is regulated by uncodified sharia law or
by codified national law, and the second whether due to recent islamisa-
tion policies pre-existing law codes, based on Western models, were
thrown overboard and replaced by fully islamised codes.
According to Table 3 (see below) Islamic family law is codified into
national legislation in eight of the twelve countries; secular marriage
law is codified in three others namely Turkey, Mali and the Nigerian
federation. Uncodified sharia is applied in marital affairs only in Saudi
Arabia, and North Nigeria.
A full scale islamisation of existing law codes seems to have taken
place in two countries mainly, the Sudan and Iran, not in the others.
It must be noted that Saudi Arabia has made some important steps
to codify hitherto uncodified areas of law into national legislation,
namely its constitutional law in the Basic Ordinance of 1992, and its
criminal procedure law in the code of 2001.
630 JAN MICHIEL OTTO

Table 3 Codification of Islamic family law in twelve countries

Country Codification: Yes/No Year
Egypt Yes 1985,2000
Morocco Yes 1958, 2004
Saudi Arabia No -
Sudan Yes 1991
Turkey -1 -
Afghanistan Yes 1977
Iran Yes 1931, 1935, 1992, etc.2
Pakistan Yes 1961
Indonesia Yes 1974, 1975
Malaysia Yes 1984, 1994
Mali3 No -
Nigeria4 No -
1 In 1917 a Family Code was enacted, based on sharia. In 1926 it was replaced by a se-
cular Civil Code including family law, based on the Swiss Civil Code.
2 A procedural Marriage Law of 1931 is still valid. Substantive family law is codified in
the Civil Code of 1935, which was changed several times since the Islamic revolution,
namely in 1982, 1991, and in the early 2000s. The Family Protection Law of 1967
was changed in 1975, suspended in 1979. In 1992 an Amendments to Divorce regu-
lation was enacted. In 1996 a Family Courts Law was enacted. In the early 2000s 21
bills became law. In 2010 a new controversial Family Protection bill is debated.
3 In 1962 Mali enacted a secular code of family law, which was elaborated in 1975.
4 A federal Marriage Act of colonial origin is still in force, as well as a 1970 federal
Matrimonial Causes Act.

Islamic courts
Have states established separate Islamic judiciaries1 that have taken on
the functions of secular state courts? We noted that in four countries,
namely in Malaysia, Indonesia, the Sudan and North Nigeria, there are
broadening mandates and powers of separate ‘religious’ or ‘Islamic’
courts.2

Islamic ruler
Is the ‘Islamic ruler’ with his apparatus essentially authoritarian and
without a check on his power, i.e. does ‘oriental despotism’, to use
Wittfogel’s famous term, still prevail? Among the Muslim countries un-
der review, monarchs and dynasties are not common anymore. Of the
twelve countries, ten are republics, and two are monarchies, namely
Saudi Arabia and Morocco; in both countries the king is powerful and
authoritarian.
In all countries, with the exception of Saudi Arabia, national parlia-
mentary elections are held. In several countries the office of president
is also elected. For example, in Iran people elect the president, who can
be impeached by Iran’s parliament. Iran’s Leader is elected by the
Assembly of Experts, who can also depose him. In the Sudan, the ruling
military dictatorship called elections in Spring 2010, ensuring
TOWARDS COMPARATIVE CONCLUSIONS 631

democratic legitimacy of his regime. As in most developing countries,

political culture in the Muslim world is still marked by authoritarian-
ism, albeit in varying degrees.

Legal status of women

Of all areas of law, family and inheritance law are most influenced by
classical sharia. Turkey which has adopted a civil code based on a Swiss
model, is the exception to this rule. Sharia-based family law discrimi-
nates against women on a number of issues. However, family laws in
many Muslim countries have gradually taken distance from classical
sharia to the benefit of women; repudiation and polygamy are restricted
by procedural and substantive requirements which are laid down in leg-
islation, case law, and in (standard) marriage contracts. Such provisions
vary in their severity and effectiveness.

Repudiation (unilateral divorce by the man)

Is a man’s right, bestowed upon him by classical sharia, to repudiate
his wife at will, unilaterally, and without having to give a reason, still va-
lid? Unilateral repudiation is restricted in six of the countries, and pro-
hibited in one, Turkey. In five of the twelve countries under review the
man can still on his own authority cast off his wife, with no or hardly
any restriction (see Table 4).

Polygamy
Has the man maintained his right, as provided for by classical sharia, to
conclude multiple marriages with up to four wives, without the need
for permission of the first wife or of state authorities? In only three of
the twelve countries under review a man may freely marry a second,

Table 4 Family law: unilateral repudiation of wife by husband, in twelve countries

Not or hardly limited Several procedural Prohibited
and/or substantive limits
Egypt x
Morocco x
Saudi Arabia x
Sudan x
Turkey x
Afghanistan x
Iran x
Pakistan x
Indonesia x
Malaysia x
Mali x
Nigeria x
632 JAN MICHIEL OTTO

third, or fourth wife on his own authority and without any restrictions
or formalities. In other countries polygamy is legally controlled and re-
stricted by the state, usually by family courts or councils.

Divorce, initiated by women

Does a woman have the possibility to obtain a divorce from a court? In
ten of the twelve countries women can apply to the court for divorce –
whether or not the divorce is based on grounds established in her mar-
riage contract; frequently the law gives women considerable space.

Inheritance
Do female heirs inherit half of what male heirs in a similar position
would inherit? Inheritance law has distanced itself much less than mar-
riage law from classical sharia. Formally, women in most of the coun-
tries under review have indeed the right to one half of the heritage of a
man in an equal position. Some country studies, however, like Morocco
and Indonesia, refer to research suggesting widespread discontent with
such discriminatory law, and presenting evidence that in practice people
manage to find ways to leave equal shares to their daughters as to their
sons.

Cruel corporal punishments

Enactment of hadd-offences
Have national criminal laws enacted the classical sharia-based provi-
sions that prescribe heavy corporal punishments for five specific hadd-
crimes, namely extramarital sex, accusation of extramarital sex, robbery,
theft, and consumption of alcohol; and have they added, as some
schools prescribe, apostasy as a sixth hadd-offence? Of the twelve coun-
tries, there are five where these hadd-offences are partially or fully en-
acted in national law, i.e. Pakistan, Iran, the Sudan, Saudi Arabia,
Afghanistan (see Table 5 below). Four countries have not done so,
namely Egypt, Morocco, Turkey, Mali, and the Nigerian federation.
While Indonesia, Malaysia as well as Nigeria have a long tradition of na-
tional criminal law without such provisions, they were introduced in
the 1990s by several Malaysian states, and in the 2000s by eleven
Northern Nigerian states, as well as by the remote Indonesian province
of Aceh. Concerning apostasy, see below and Table A.6 (in Annexe).

Executions of heavy corporal punishments

To which extent is it common practice to actually administer cruel cor-
poral punishments, such as stoning and amputation. According to the
country studies, at the time of writing, only Saudi Arabia is still
TOWARDS COMPARATIVE CONCLUSIONS 633

Table 5 Twelve times hadd-punishments in law and actual executions, in twelve

countries
Hadd-punishments in the law1 Stoning and/or Amputations carried out2
Egypt No -
Morocco No -
Saudi Arabia Yes No recent stonings, amputations continue
Sudan Yes Declined strongly
Turkey No -
Afghanistan Yes, but legality disputed No
Iran Yes Irregularly3
Pakistan Yes No
Indonesia No -
Malaysia No, except in certain states No
Mali No No
Nigeria Yes, in Northern states No stoning, amputation strongly declined

1 The penal code of Saudi Arabia is completely based on sharia, including hadd--
punishments. In the other “yes” nations the punishments can be found in the follow-
ing legislation: the Sudan, penal code of 1991, articles, 78, 26, 146, 157, 168, 171;
Afghanistan, penal code of 1976; Iran, penal code of 1996, articles 63-203; Pakistan,
hudud ordinances of 1979; Malaysia, hudud laws in two member states, Kelantan and
Terengganu; Nigeria, penal codes of eleven Northern states.
2 In some nations, whipping has taken place regularly, e.g. in Pakistan, particularly in
the early 1980s.
3 In July 2005, two boys were hanged after being convicted for homosexuality. This ex-
ecution shocked many, the more so since Iran had suspended applying corporal pun-
ishment, such as stoning and amputations, since 2002. It should be noted that hang-
ings are anyway not in line with the traditional hadd-punishments, as mentioned in
classical sharia. Since 2005, when the new conservative government under
Ahmadinejad came in, amputations and to a lesser extent stoning were carried out
again.

executing the hadd-punishment of amputation. As Table 5 shows, in the

other countries where such punishments are legally in force, such ex-
ecutions are reportedly very rare to non-existent.

Retribution and blood money

Have national criminal laws enacted classical sharia-based provisions
that entail the retribution (qisas) of violent offences, such as murder
and assault, according to the principle of an ‘eye for an eye’, or its being
bought off with ‘blood money’ (diyya). Such provisions are not found in
seven of the twelve legal systems. In five countries, Saudi Arabia, the
Sudan, Iran, Pakistan, and North Nigeria, such provisions are in force;
the legal situation in Afghanistan is uncertain.
634 JAN MICHIEL OTTO

Violations of human rights

This fourth area of concern is different from those mentioned above in
that here we are concerned with the extent to which international hu-
man rights standards are accepted, affect national laws, and are adhered
to in practice.

Joining international human rights treaties

Have Muslim countries actually accessed, ratified, and implemented the
major human rights treaties, and are they subjected to regular evalua-
tion and benchmarking? The country studies confirm that since the
1990s governments of Muslim countries have abandoned their pre-
viously dismissive attitude towards human rights. Becoming signatories
to international treaties and adopting human rights in national constitu-
tional law, Muslim countries have made important steps in a process of
convergence between their national laws – whether formally referring
to sharia or not – and human rights standards. Table 6 below details
the year of signature, accession, and ratification for three key human
rights treaties by each country reviewed.

Table 6 Signing, years of accession and ratification of human rights treaties in

twelve countries
ICCPR1 CEDAW2 CAT3

Signed Ratification, Signed Ratification, Signed Ratification,

Accession, Accession, Accession,
Signing year Signing year Signing year
Egypt Yes 1982 R Yes* 1981 R Yes 1986 A
Morocco Yes 1979 R Yes* 1993 R Yes 1993 R
SaudiArabia No - Yes* 2000 R Yes 1997 A
Sudan Yes 1986 A No - Yes 1986 s
Turkey Yes 2003 R Yes 1986 R Yes 1988 R
Afghanistan Yes 1983 A Yes 2003 R Yes 1987 R
Iran Yes 1975 R No - No -
Pakistan Yes 2008 s Yes 1996 R Yes 2008 A
Indonesia Yes 2006 A Yes 1984 R Yes 1998 R
Malaysia No - Yes* 1995 A No -
Mali Yes 1974 A Yes 1985 R Yes 1999 A
Nigeria Yes 1993 A Yes 1985 R Yes 2001 R
* Reservation(s) related to sharia
(Source: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV, last accessed
on March12, 2010)
1 International Covenant on Civil and Political Rights (1966)
2 Convention on the Elimination of All Forms of Discrimination against Women
(1979)
3 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984)
TOWARDS COMPARATIVE CONCLUSIONS 635

Freedom from discrimination

To which extent do laws and practices discriminate against women in
family and inheritance law, as well as against other groups? Table A.4
(see Annexe) shows that the constitutions of eleven of the twelve coun-
tries under review embrace the principle of equality – the exception
being Saudi Arabia. Two countries, Iran and Egypt, make express reser-
vations for conformity with Islamic rules.

However, as the country studies demonstrate, a host of particular rules

in national laws and case law conflict with the constitutional guarantee
of equality, not to speak of social practices on the ground. Of the fre-
quent practices of discrimination – a hard fact of life in most countries
– a number is sanctioned by national and local sharia-based laws and
regulations. In most countries efforts to completely remove such discri-
minatory provisions run up against fierce puritan and conservative re-
sistance (see 14.5).

Freedom of religion and apostasy

Is leaving one’s faith criminalised as apostasy and punishable with hea-
vy penalties? As shown in Table A.5 (see Annexe) eleven of the twelve
constitutions guarantee freedom of religion, the exception being Saudi
Arabia. Seven out of twelve countries have not criminalised apostasy
(see Table A.6). In two countries, Saudi Arabia and the Sudan, apostasy
is a crime, and in Iran, at the time of writing, a bill of similar import is
pending (see 8.7). In Afghanistan it is unclear and disputed, while in at
least one state in Malaysia, it is punishable, though the subject is heav-
ily contested.

14.4 Comparing and ordering national legal systems

This section will attempt to classify the twelve countries’ legal systems
according to the degrees in which they have been impacted by sharia-
based law, notably of puritan orientation, by introducing a rough, three-
fold division. The first category consists of systems where sharia-based
law of a puritan orientation pervades most areas of law. Saudi Arabia
and Iran fit into this category. A second category consists of secular le-
gal systems, in which sharia has no role whatsoever. Turkey is a promi-
nent example. This leaves us with the majority of legal systems, a mid-
dle group of ‘mixed systems’ as our third category. In these legal sys-
tems sharia-based law has no overall dominance but plays a significant
role in one or more areas of the law. We will begin with Saudi Arabia
and Iran, followed by the large middle group in order of decreasing le-
vel of puritan islamisation. We will conclude with Turkey.
636 JAN MICHIEL OTTO

Puritan orientation towards classical sharia

Saudi Arabia and Iran have, each in their own way, a strong orientation
towards classical sharia. For Saudi Arabia sharia is the basic norm,
while Iran wants to combine the two competing norms of what is called
Islamism (eslamiya) and the republicanist state (jomhuriyat) (see 8.4).
In these two countries conflicts between sharia-based law and human
rights are most prevalent and acute.
In the traditional, closed, autocratic kingdom of Saudi Arabia, under
supervision of the royal house and the powerful ulama, uncodified sha-
ria of a puritan orientation has remained the backbone of the country’s
legal system until the present day.

Saudi Arabia not only has a unique legal system, compared to

Western systems, but also compared to other Muslim countries.
The Saudi model is perhaps closest to the classical form of sha-
ri‘a adherence and application which developed after the estab-
lishment of Islam on the Arabian peninsula in the early seventh
century. […] While the revealed law has always been – and re-
mains – the general law of the land, the government also issues
important ‘regulations’. However, Islamic jurisprudence remains
the first point of reference in cases concerning personal status,
crime, civil contracts, property, etc. Judges have resorted primar-
ily to the Qur’an, the Sunna, and fiqh-books in their quest for
justice. A judge […] enjoys great discretionary power and is not
bound by doctrine of precedent. Religious scholars are also per-
mitted to give their opinions on the application of shari‘a by giv-
ing legal advice (fatwa). Fatwas are of legal importance in Saudi
Arabia and judges take them into consideration. (Van Eijk intra,
see 6.10)

The Islamic Republic of Iran (1979) is led by a supreme Leader, who,

with support from other high clerics, maintains sharia in the Shiite tra-
dition. Contrary to Saudi Arabia, Iran established a tradition of parlia-
mentary elections and law-making, codification, and a centralised judi-
ciary (1906-1907). Today’s Iran is shaped by a revolutionary response to
the last Shah’s repressive regime.

Ruled by clerics, it combined not just religion and the state, but
also theocracy and democracy. The founders made two broad as-
sumptions: first, that what makes a state ‘Islamic’ is adherence
to and implementation of the sharia; secondly that, given free
choice, people will choose ‘Islam’ and will, thus, vote for clerics
as the interpreters and custodians of the sharia. When they
TOWARDS COMPARATIVE CONCLUSIONS 637

framed the constitution, the founders included both theocratic

and democratic principles and institutions. The Constitution
clearly recognises the people’s right to choose who will govern
them. But some institutions, including Parliament and the pre-
sidency, though elected by direct popular vote, are nevertheless
subordinated to clerical oversight and veto. This contradiction re-
mained unresolved but unproblematic while Ayatollah
Khomeini was alive and able to mediate it […]. (Mir-Hosseini in-
tra, see 8.10)

However, ‘after over a decade of the experience of Islam in power,

Islamic dissent began to be voiced among “insiders” and became a
magnet for intellectuals whose ideas and writings now formed the back-
bone of the New Religious Thinking.’ In the 1990s they sought new di-
rections, and. […] ‘armed with Soroush’s theory of the relativity of reli-
gious knowledge, they wanted to create a worldview reconciling Islam
and modernity, and argued for a demarcation between state and reli-
gion.’ (ibid, see 8.4). Such debates among Iran’s religious scholars dis-
play a dynamism which differs considerably from the static conserva-
tism prevailing in Saudi Arabia. In recent years,

[…] the notion of sharia as an ideal enabled the reformists in

Iran to argue for democracy and the rule of law and to challenge
patriarchal and despotic laws enacted in the name of Islam.
They did so by appealing to Islam’s higher values and principles,
and by invoking concepts from within Islamic legal theory, nota-
bly the distinction between sharia as ‘divine law’ and jurispru-
dence (feqh) as the human understanding of the requirements of
the divine law. (Mir-Hosseini, intra, see 8.10)

Large middle group

Of the nine countries of the large middle group, the Sudan, Pakistan,
and Afghanistan are more oriented toward classical sharia and puritan
orientations. Yet, they belong to a category different from the first two
countries in that their basic norm combines the ‘introduction of sharia’
with more explicit and broader adherence to rule-of-law standards. In
these countries, the basic norm seems more dualist and ambiguous.
In the Sudan, many of the legal codes were replaced by Islamic codes
in 1983-1984. Because the non-Islamic South would not accept this,
war under a military dictatorship prevailed for many years. However,
the 1998 Constitution established a remarkably pluralistic basis for the
law, which was reconfirmed in the 2005 interim national constitution
(INC) following the Comprehensive Peace Agreement. At present ‘a
638 JAN MICHIEL OTTO

non-Muslim could, theoretically, become president of the whole of the

Sudan (Art. 53)’ and the Sudan has a constitutional court to uphold its
moderate constitution (Köndgen intra, see 5.5).

Only a few of the INC’s articles make direct reference to Islam.

Article 1 (INC) states that the Sudan is a multi-racial, multi-eth-
nic, multi-religious, and multi-lingual state. Thus, de jure Islam
is not the state religion. (Köndgen intra, see 5.5)

Accordingly,

The INC also guarantees men and women equal rights in the
areas of civil, political, social, cultural, and economic rights (Art.
32). These guarantees, however, contradict to some degree other
Sudanese legislation. Equal rights for men and women are espe-
cially relevant with regard to shari´a-based parts of the Criminal
Act (1991) and in consideration of family and inheritance laws,
which are known to be disfavourable to women in a variety of
ways. (ibid)

Pakistan was founded in 1947 as a republic for Muslims, but islamisa-

tion of the constitution and other laws had to wait until the 1970s (see
9.3-9.5). Islamic criminal law, including the law of retribution, applies
today, but family law, codified in the Muslim Family Laws Ordinance of
1961 was not further islamised. In both areas of law, judges in the high-
er courts have carried out an intense battle of ideas – often by use of
impressively reasoned common law arguments – to maintain a moder-
ate position. Among other things, they were able to strengthen the legal
status of women in divorce matters and to prevent severe hadd-punish-
ments; also they called the legislative ban on interest into question.

How the position and role of classical sharia will be further de-
veloped in Pakistan’s national legal system will depend largely
on the political choices to be made by the PPP, choices pertain-
ing to socio-economic development, electoral results, political
stability, relations with the West, Iran and China, and last but
not least, to the Pakistani judicial authorities. At present, faced
with the violent attacks carried out by Islamic extremists not just
in the tribal areas but in the very hearts of Pakistan’s cities, poli-
ticians seem to have lost any interest in pursuing a policy of
Islamisation. (Lau intra, see 9.10)

Afghanistan’s constitution has a dual basic norm and progressive hu-

man rights provisions. It bears the marks of years of intense
TOWARDS COMPARATIVE CONCLUSIONS 639

international and national negotiations in the wake of the 2001 Bonn

Accords. Yet, the liberalisation of marriage laws has been very limited.
In criminal matters it is unclear to what degree sharia or any codified
criminal law is now in force. Customary law plays a major role in prop-
erty dealings and a considerable role in family law and criminal matters
as well. For the time being, the political and security situation hinders
the effectiveness of any legal system, whether based on sharia or an-
other source.

The result is disjointed legislation, with many gaps and unregu-

lated areas of law. Röder calls the legal landscape ‘a patchwork’
of various norms (Röder 2009: 257). […] a fragmented mélange
of secular, customary, and religious law variously applied accord-
ing to local acceptance of central legislation and modified by
shifting conditions of governmental authority. […]. The limited
practical value of Afghanistan’s statutory laws has to be attribu-
ted to the decline and demise of central political authority in
Afghanistan as a result of the civil war, but also to the lack of
training of legal professionals and the inability to adapt statutory
law to Afghanistan’s particular circumstances. This means for
instance that judges either do not know the law well, or know it,
but are reluctant to apply it. (Yassari and Saboory intra, 7.10)

Any reform of the legal system to bring it in line with interna-

tional human rights standards or with the provisions of the new
constitution will require as an essential prerequisite the exis-
tence of a stable, functioning, and capable state, both able and
willing to enforce laws (Lau 2003: 4). At present, this is sadly
not the situation in Afghanistan. (Yassari and Saboory intra, see
7.9)

As compared to the three abovementioned countries, the constitutions

and laws of both Egypt and Morocco seem relatively stable. Their crim-
inal laws have stuck to their European models without sharia-based pro-
visions. Similarly, their civil laws, in French fashion, have remained un-
changed, while the marriage laws in both countries have been strikingly
modernised.
Morocco’s 2004 reform of the family law codification, almost fifty
years after its first enactment, marked the end of a long and intense do-
mestic debate.

The debate on family law was waged almost entirely in Islamic

terms. Progressive groups frequently referenced the applicability
of universal human, women’s, and children’s rights and the
640 JAN MICHIEL OTTO

importance of international women’s conferences and conven-

tions, but they never dared to voice the possibility of viewing
Moroccan family law from a secular perspective. By constantly
referring to ijtihad, the modernists placed themselves within the
Islamic tradition. […] While Islamic family law has gained re-
newed meaning as a political symbol, ‘human rights’ (huquq al-
insan) as a concept has become the most important political dis-
course in present-day Moroccan society, as a means of both legit-
imising and criticising government policy. (Buskens intra, see
3.4)

In Egypt, the relation between sharia and national law is marked by

strong opposing forces. On the one hand, puritan political pressure is
exerted to stretch the meaning of Article 2 of the constitution which
states that the principles of sharia are the source of legislation. On the
other hand, we see a Supreme Constitutional Court acting as guardian
of the rule of law, and a new marriage law, which is

one of the most radical reforms also being Egypt’s first law of
the twenty-first century. Article 20 of Law 1/2000 effectively pro-
vides for the right of women to unilaterally divorce their hus-
bands through a court procedure called khul‘ (Sonneveld 2009;
see also 2.6). This is exceptional for two reasons. Firstly, while
the law was presented as a law of procedure, it, in actual fact,
contains rules of substantive law. Secondly, although the article
on khul‘ was presented as being in accordance with the sharia, it
is not part of the corpus of any of the four Sunni schools of jur-
isprudence. […] This law therefore brought about an expansion
of the authority of the legislature with regard to interpretation of
the sharia. (Berger and Sonneveld intra, see 2.4)

Two other countries of the ‘large middle group’, namely Nigeria and
Malaysia, are federations with large non-Muslim population segments,
which enacted rather progressive constitutions that ascribe only a lim-
ited place to Islamic law. Both countries have a strong common law tra-
dition. Sharia plays an important role in matters of family law. In both
countries leading politicians at sub-national state level promised to in-
troduce sharia-based criminal legislation at the time of elections, won,
and kept their promise. In Nigeria, this process happened on a much
larger scale and more systematically than in Malaysia. In both countries
the jurisdiction of sharia courts was extended at the cost of general
courts.
In Malaysia, according to Harding, between the sharia courts and the
civil courts there ‘have been and continue to be significant skirmishes
TOWARDS COMPARATIVE CONCLUSIONS 641

at the borders, which are expressed principally in terms of legal strug-

gles over territory or ‘jurisdiction’ (see 14.10). There is, for example, a
difference of opinion in the federal courts over the question as to
whether the states have the power to introduce sharia criminal law, and
execute punishments. In Harding’s view:

The success of the legal cultures of Southeast Asia over hun-

dreds of years in absorbing and melding various legal worlds
and concepts indicates that a syncretic, creative, and peaceful so-
lution to the problem of Islam and constitutionalism is by no
means impossible. At present it seems as though such an ideal
solution is fraught with both political controversy and intellec-
tual confusion. (Harding intra, see 14.10)

However, the very fact that these conflicts are debated, and often even-
tually decided, in the courtroom makes the author conclude that the
mechanisms of the common law are capable of structuring and moder-
ating the fundamental conflicts between sharia and the rule of law
(ibid.).
In 2000 and 2001 eleven states in Northern Nigeria went so far as to
implement Islamic criminal law and entrust its application to Islamic
law courts. While this is a major legal shift, it should be noted that the
judiciary still has allowed no stonings, and since 2002 no more ampu-
tations. The federal government has decided to allow islamisation for as
long as, in its judgment, the constitution is not actually violated.

Governor Sani [of the northern state of Zamfara, JMO] ’s an-

nouncement of his sharia implementation programme exhila-
rated Nigeria’s Muslims, and produced tremendous pressure on
the governments of other northern states to follow suit. But it
aroused fear and loathing among Christians, who expected the
worst; civil war was even predicted by some [...] Everyone’s worst
fears seemed to be confirmed by the first amputation of a hand
for theft already in March 2000, and then by the stoning cases
of Safiyatu Hussaini (2001-2002) and Amina Lawal (2002-
2003), which caused an uproar around the world. Since those
early days, however, the clamour has died down completely, to
the point that sharia implementation was a non-issue, virtually
never mentioned, in the state and federal election campaigns of
2007. (Ostien intra, see 13.4)

The legal systems of the two remaining countries of the large middle
group, Indonesia and Mali, are more secularly oriented. The word
Islam does not appear in Indonesia’s constitution, while Mali’s
642 JAN MICHIEL OTTO

constitution states that it is a secular republic. Both systems, founded

on a colonial heritage of continental law, Dutch and French respectively,
allow only limited space to sharia, mainly in family and inheritance law.
Indonesia has a codified Marriage Law (1/1974), which assigns con-
siderable powers to the state Religious Courts to decide about cases of
divorce and polygamy. The 1991 Compilation of Islamic Law is to back
up the work of the Religious Courts with an Indonesian restatement of
fiqh-rules. In 2006 a similar compilation was issued for the area of eco-
nomic law. While until 1998 Indonesia’s ruling elites, whether colonial
or postcolonial, tried to control, bureaucratise and direct people’s reli-
gious orientations,

Indonesia is presently conducting a unique experiment with de-

mocratic law-making in the context of cultural islamisation. In
this process, it has been responding both to Islamist pressure
and the call to respect human rights. (Otto intra, see 10.10)

This experiment has led to many local and provincial regulations aim-
ing at the promotion of Islamic virtue and the prevention of vice.

Remarkably, the promotion of sharia-based legislation, both in

Aceh as well as in other provinces and districts, has largely been
driven by non-Islamist parties such as Golkar and PDI (Bush
2008). Similarly, Aceh’s turn to the sharia […] did not unequivo-
cally express the strong demand of all Acehnese. On the con-
trary, when after the Peace Agreement the Free Aceh Movement
had turned into a regular political party, and this newly formed
Partai Aceh won the 2009 elections, they opposed the radical
turn to sharia-based law. (ibid.)

In Mali, ‘Sharia did not play a role in the formation or adaptation of

Malian law’ as ‘[I]slamic law has never been strongly represented or in-
stitutionalised in any colonial or postcolonial state law.’ (see 12.3, 12.10).

One reason why the growing political weight of influential

Muslims did not translate into an islamisation of the legal insti-
tutional framework is certainly the coterminous, growing influ-
ence of Western donor organisations to which Moussa Traoré
turned increasingly throughout the 1980s in search for financial
support. (Schultz intra, see 12.4)

The way in which people equate their local customs with sharia also
needs to be taken into consideration.
TOWARDS COMPARATIVE CONCLUSIONS 643

It must be noted that at the grassroots level polygamy and other

conventions in the sphere of marriage and family relations were
never regarded as specifically Islamic practices. In most rural
and urban zones of contemporary Mali, physical punishment,
repudiation, and other practices reaffirming women’s inferior
status position and rights vis-à-vis elders and men are commonly
accepted. These actions are occasionally attenuated by the inter-
vention of mediators and kin. But the actions are nevertheless
acknowledged as accepted custom. (Schultz intra, see 12.6)

Efforts to pass a new bill on family law have been frustrated for many
years, due to the conflicting views of puritans and moderates, and of
Western and Islamic donors.

Secular system
In Turkey sharia is completely removed from the national legal system.
Secularism or kemalism is constitutionally anchored, and a constitu-
tional court watches out for any violations. An Office for Religious
Affairs supervises religion and education. The first three articles of the
constitution (1982) formulate ‘fundamental principles described as ‘im-
mutable provisions’ in Article 4’. They stipulate that

Turkey is a constitutional parliamentary democracy with a wide

range of human rights […] Articles 1, 2, and 3 […] outline the
constituent characteristics of the system which include it being
a democratic, laic, constitutional state that respects human
rights.[…] The republic remains loyal to Atatürk’s nationalism
and the fundamental tenets set forth in the preamble, which
states that ‘as required by the principle of laicism, there shall be
no interference whatsoever by sacred religious feelings in state
affairs and politics […]. (Koçak intra, see 6.5)

The secular legal system, however, is often tested by individuals, groups

and political parties demanding more space to profess their Islamic reli-
gion, for example by wearing a headscarf. The judiciary and the army’s
general staff remain on guard to protect the state against what they see
as a direct threat.

As this section has shown, the differences between countries in how

they have incorporated sharia in their national legal systems – or not –
are considerable. In view of such overwhelming diversity an essentialist
approach seems beside the point. The future modalities of incorpora-
tion of sharia do not primarily depend on puritan rage, or on
644 JAN MICHIEL OTTO

transnational human rights activism. The leading part is played by na-

tional office-bearers – politicians, law-makers, judges and bureaucrats –
who, interacting with civil society amidst opposing and complex ideolo-
gical forces, will continue to struggle, negotiate, and decide about the
guiding principles and rules of incorporation.

14.5 Governance
Policy re sharia and contemporary challenges of governance
It may be the case that this book has created the impression that pro-
blems of sharia-based law appear as priority issues on cabinets’ agendas
throughout the Muslim world all the time. In reality, far more fre-
quently discussed are issues of security and stability, economic growth,
public finance, poverty reduction, education, public health, housing, de-
centralisation, elections, and foreign relations. No different than any-
where else, Muslim governments aim for the three goals of stability,
prosperity, and social justice. Governance efforts to reach these goals re-
quire a degree of democracy, sound administration, and an effective le-
gal system, whether derived from fiqh-sources or not.
Perhaps in Saudi Arabia and Iran sharia is so central to all policy con-
cerns that political decision-making immediately touches upon issues
of sharia-based law. In most Muslim countries, however, political debate
about sharia and national law is often just simmering in the back-
ground, only to flare up when attention is called to specific events and
issues. High profile cases of ‘Islamic crimes’, a new marriage bill, puri-
tan violence, skirmishes about judicial competences, inter-religious con-
flict, are all of great political sensitivity.
Governance in such areas comes down exactly to how Hyden et al.
define it, namely as “the formation and stewardship of the formal and
informal rules that regulate the public realm, the arena in which state
as well as economic and societal actors interact to make decisions”
(Hyden et al. 2004: 16). Governance decisions, as Hyden et al. elabo-
rate, are made in six different arenas of governance, i.e. government, ci-
vil society, political society, bureaucracy, economic society, and the judi-
ciary (ibid: 18-22). The country studies in this book have explored many
of these arenas, and show that the Muslim state has taken many differ-
ent shapes: just caliphate, despotic sultanate, colonial empire state, in-
dependent state, authoritarian state, socialist state, developmental state,
sharia state, democratic state, aid state, corrupt state, failing state, rule-
of-law state.
In section 14.2 we concluded that during the first decades after
World War II most developing countries suffered from several serious
governance failures. In response, a ‘new governance’ emerged in the
developing world during the last few decades. Therefore, contemporary
TOWARDS COMPARATIVE CONCLUSIONS 645

policy discussions on incorporation of sharia take place in a governance

context which has changed. First, market forces have been released and
created in many countries an entrepreneurial middle class with a vested
interest in the rule of law. Furthermore, democratisation and elections
have changed political landscapes significantly. Demands for respect of
individual human rights cannot be neglected by governments without
strong criticism. Corrupt behavior is openly discussed, yet still omnipre-
sent. Domestic and international programmes to strengthen judiciaries
in order to promote the rule of law are in full swing (Carothers 2006).
And, finally, religion, notably Islam, has returned to the center stage.
No doubt, this new governance cannot be a cure for all policy problems,
but it certainly shows a learning curve.
As for the relationship between sharia and national law, the experi-
ments with puritan governance in Iran, the Sudan, Pakistan,
Afghanistan, and North Nigeria have provided an opportunity to experi-
ence the ‘introduction of the sharia’ in contemporary states. The chap-
ters by Mir-Hosseini, Lau, and Köndgen, describing Iran, Pakistan, and
Sudan – the forerunners in this process – strongly suggest that the era
of revolutionary Islamic law reform is past its peak. Ostien’s chapter
emphasises that for Nigeria the learning experience of islamisation is
essentially a good thing, and that within a decade since its inception,
the introduction of sharia has already become a non-issue. Yet, there is
no reason to expect that political pressure to incorporate sharia in na-
tional law will altogether wither away.

Governments, puritans and scholars: clashes and compromises3

In every country study in this book, sooner or later the puritans pop up;
for example, the Mahdi in nineteenth century Sudan, the Muslim
Brotherhood in Egypt, the mullahs who deposed king Amanullah of
Afghanistan, Khomeini and his Ayatollahs, the Saudi rebels occupying
the Grand Mosque in Mecca, the MMA-coalition in Pakistan, and the
PAS party in Malaysia. No region, no era in Islamic history escapes
completely the presence of the puritans.
Time and again they display the same features, these men – and wo-
men – of ideals, imagining a better society and government. Quite a
few are individual models of selflessness, devoted to ‘the cause’ and to
providing social services. Both characteristics are rare in developing so-
cieties, where most people struggle to make ends meet. In doing so
they act as catalysts of popular discontent. A minor segment is militant,
and ready to die as martyrs. All of this is part of their appearance as
true and pious Muslims.
Most governments fear puritans. Puritan groups are often well-orga-
nised, have large numbers of active followers and transnational
646 JAN MICHIEL OTTO

networks, their own media, and (inter)national financiers. They also are
among the few organised movements who speak about the real and ser-
ious problems that disrupt society in most of these countries: poverty,
lack of security, education, and health; invasion of the government into
everyday life; and corruption, urbanisation problems, social and cultural
changes, partly under foreign influences (Halliday 2003: 118). Although
many of them are young students, one can find senior members in reli-
gious institutions, the bureaucracy, the judiciary, the army, and the busi-
ness sector. While puritans are often capable of infiltrating those insti-
tutions, state intelligence units are often able to detect and arrest them.
In the struggle to change the existing relationship between sharia
and national law, puritan movements deploy their activists along a num-
ber frontlines, which largely coincide with the main concerns and is-
sues discussed in previous sections (see 14.3).
Another important party in this struggle is the religious establish-
ment of scholars. Many scholars have an ambivalent relationship with
the puritan movements: they feel criticised by them, and they see them
as unskilled in fiqh and overzealous. But, at the same time, they see
them as the front soldiers, who could pave the way to an Islamic state
in which they, the scholars, will finally play a leading role again. In spite
of their marginalisation from the national legal system, scholars retain
important functions. They are senior staff at the ministries of religion.
They sit on local, regional and national bodies as the official representa-
tives of religion, and issue fatwas about many different subjects, from
Islamic banking to euthanasia. As judges in family courts, many of
them have earned a reputation of fairness and ability to find reasonable
solutions for problematic cases. As preachers, they lead the Friday
prayer and are called to attend to the important ‘rites de passage’ –
birth, marriage, divorce, death – and to act as people’s moral compass
in the problems of daily life. Some of them do this also on radio, TV, or
the Internet. In addition, they oversee educational institutions, the man-
agement of waqf-land, the annual pilgrimage, and the collection of
Islamic alms (zakat). On all issues discussed in section 14.3, scholars
take positions based on their interpretation of the fiqh. Most govern-
ments hope that such positions will support state policies and laws, as
the scholars’ religious blessing is most welcome to enhance the state’s
legitimacy.
Besides puritans and religious scholars, the ideological spectrum of
Muslim countries is beset with feminist movements, human rights
groups, and explicitly liberal Muslim groups. While deciding upon sha-
ria-related issues, governments have to consider the – often conflicting –
demands of the conservative ulama, the puritans, the modernists, the
religious minorities, the feminists, and so on. Inevitably, they will in-
voke disappointment and anger from one party or the other. In order to
TOWARDS COMPARATIVE CONCLUSIONS 647

take the wind out of the puritans’ sails, to appease the clergy, and to re-
concile the various goals of development and good governance, clever
compromises are needed. The country studies in this book testify to the
impressive balancing capacities of law-makers, administrators and
judges, using the dual basic norm and legal ambiguity to the best of
their knowledge.

The complex relationship between sharia and custom

Meanwhile, governments in developing Muslim countries also have to
deal with communities, clans, and tribes which make up much of the
social structure of their countries. Alongside the rise of Islam, sharia
brought a series of religious, social and legal reforms to a patriarchal
and often brutal society, where Arab tribal customs constituted the pre-
vailing law. In spreading their religion, Muslims set out to replace local
traditions with sharia as the prime normative system. However, custom-
ary norms were not simply washed away, being deeply rooted and clo-
sely connected with kinship, power, and economy. In certain areas con-
sensus emerged by mutual acceptation and adaptation. As the scholars
developed sharia, they took local norms into account. Islamic jurispru-
dence recognises custom (orf). Leaders of clans, tribes and local com-
munities converted to Islam and added sharia to the repertoire of
norms they applied. In other areas, tensions grew between such leaders,
their customs and old-established authority structures on the one hand,
and the Islamic authorities with their firm beliefs, their message of re-
form, and their more uniform and elaborated justice system on the
other hand. Both harmony and conflict between sharia and custom are
played out throughout this book.
Puritans especially tend to hold local custom and local culture in low
esteem. They disapprove of pre-Islamic norms, they denounce casual
dress, close companionship between unmarried women and men, they
dislike the widespread respect for Sufism, for saintly figures, for music
and dancing, branding it all as un-Islamic. Their zealous promotion of
puritan ideas, however, has yielded not only political successes, but also
a variety of counter-movements. In a book entitled ‘The Illusion of the
Islamic State’ (Ilusi Negara Islam) the late former president of
Indonesia, Abdurrahman Wahid, strongly condemns the infiltration of
Saudi-funded transnational puritan movements in Indonesia, accusing
them of ‘cultural genocide’ (Wahid 2009: backcover).

In contrast, there is also evidence from countries in both Africa and

Asia that there is a strong demand for sharia as a substitute for arbi-
trary and repressive tribal justice. In fact this is a historical role of shar-
ia. As Yassari explains ‘the status of Afghan women under customary
648 JAN MICHIEL OTTO

law is worse than the status afforded to them under the most conserva-
tive interpretation of Islamic law’ (see 7.10). Ostien suggests that acti-
vists who seek to improve the legal status of women in Nigeria take re-
course to sharia for the same reasons:

That Islamic personal law as applied in northern Nigeria is still

often contaminated by local custom antithetical to women is
confirmed by the work of the Federation of Muslim Women
Associations in Nigeria (FOMWAN), founded in 1985 (Yusuf
1993), and more recently by the attitude taken toward sharia im-
plementation by Muslim women activists (see 13.6).

Ostien’s findings confirm the recent findings of Stiles (2009) about

Tanzanian Muslim women who discovered that Islamic justice provides
them with individual rights (hakki), opening the desired road to free-
dom from a tribal life without rights. Today, amidst much understand-
able criticism of sharia, it is often forgotten that the only alternative
which is available in many places, is unfortunately not an effective and
fair state justice system, but rather a semi-functional customary system.
Often it is difficult to entangle the religious from the customary.
Does sharia justify customs such as female circumcision, or honour
killings, or are these local traditions, which the sharia disapproves of?
In spite of authoritative fatwas denying the Islamic nature of such cus-
toms, for example the one on circumcision issued by Egypt’s supreme
religious authority, the Sheykh al-Azhar (see 2.9), such practices con-
tinue. At grassroots level, people often do not know nor mind the pre-
cise normative foundation of their behaviour, as long as it is part of
‘our tradition’.
Similarly, it is sometimes difficult for outsiders, including Western
journalists, to distinguish Islamic court rulings from primitive mob-jus-
tice or repulsive misuse of authority by local policemen or other offi-
cials. If primitive clan members kill a woman accused of extramarital
sex by stoning her, as has happened repeatedly in Pakistan – in flagrant
violation of sharia’s basic procedural and evidence rules – Western
media are often quick to link it to what they call ‘Islamic law’.
Since tribal and community leaders are real power holders in many
areas of the Muslim world, they often are instrumental for national poli-
tical stability. In their communities they are ‘big men’, who solve pro-
blems and settle conflicts by applying traditional or indigenous law.
They manage the relations between the local and the national, acting as
intermediaries between the police, the army, business, and as vote-bro-
kers in elections. In times of trouble they can become small or big war-
lords, turning their clan members into fighters. Governments, for the
TOWARDS COMPARATIVE CONCLUSIONS 649

sake of stability, must therefore also keep the tribal leaders satisfied,
and be careful not to disregard their wishes and ‘their traditions’.

Attitudes of the West

Our country studies confirm that the relationship between sharia and
national law is highly dependent on domestic politics. Transnational re-
lations within the Muslim world is another important factor. In addi-
tion, the West remains involved in this matter, as certain sharia policies
are in part motivated by a rejection of the West and others by appease-
ment. At the time of writing, two decades of extreme Western hubris
that started with the fall of the Berlin wall, seem to be coming to an
end. The Western banking system has undergone an unprecedented fi-
nancial crisis. China, India and other economies have emerged success-
fully; Muslim countries such as Indonesia, Turkey and Saudi Arabia
have joined the G-20. Regime change in Iraq and Afghanistan, as con-
ceived by the West, has been far more difficult than expected. Western
foreign policy regarding the Muslim world also seems unable to solve
the democratisation dilemma: on the one hand, the West pushes for
free elections; on the other hand, it is not always ready to accept the
outcome.
A more productive attitude regarding problems in the Muslim world
will require refreshing the knowledge base, and adapting positions. An
important lesson from the country studies is that, as Buskens puts it,
the far-reaching debates on family law are waged almost entirely in
Islamic terms. Even progressive groups do not dare to present their
views from a secular perspective. By constantly referring to ijtihad they
place themselves within the Islamic tradition. Meanwhile ‘human
rights’ (huquq al-insan) as a concept has become a very important politi-
cal discourse, as a means of both legitimising and criticising govern-
ment policy (cf. 3.4).
Some authors, such as Lau on Pakistan, state that politicians in the
Muslim world have lost interest in pursuing a policy of islamisation,
due to the violent attacks, for which Islamists claimed responsibility.
Perhaps the effect of those attacks on domestic policy is greater than
most human rights interventions by the West; this would count in fa-
vour of Western foreign policies of restraint. Reading through the coun-
try studies in this book, one cannot but agree with Zakaria (2003: 155),
who comes down on the side of caution in the democratisation dilem-
ma, and turns against rapid and large-scale democratisation as was ad-
vocated by the Bush administration. In this connection he warns
against ‘ugly ethnic forces’ and argues for ‘a longer period of state-
building.’ He feels that in certain situations elections can be held only
after ‘civic institutions, courts, political parties, and the economy have
650 JAN MICHIEL OTTO

all begun to function. As with everything in life: timing matters.’ He ad-

vocates ‘a certain sophistication’ in this regard, warning that ‘[t]he haste
to pressure countries into elections […] has been, in many cases,
counterproductive.’
In any case, the international quest for justice in the Muslim world
deserves to be pursued with political sophistication, and a solid knowl-
edge base (Carothers 2006). If human rights are to be ‘everyone’s
right’, they should not be in conflict with the beliefs of 1.5 billion people
(Brems 2001). In the international monitoring procedures to oversee
the implementation of human right treaties there should be some re-
cognition for the difficult dilemmas faced by governments of Muslim
countries who often cannot but respond to the fact that the majority of
their citizens do hold sharia in a positive light.
Perhaps the West could provide useful technical and financial assis-
tance for the strengthening of human rights protection systems. For,
the ‘supply side’ of justice systems, i.e. the quality of legal process, re-
quires much investment and leadership. Whereas legal institution-
building is in the first place a domestic affair, international legal coop-
eration, with professional assistance from other Muslim countries as
well as from Western countries, can probably be of help, if carried out
well.

The long and winding road to justice

While ‘good’ governance can mean different things to different people,
there is consensus that rules and governance are good when they con-
tribute to stability, prosperity and justice. ‘Justice’ is the keyword in
Western treatises about the rule of law and human rights. Justice (‘adl)
is also the core concept in Islamic jurisprudence (fiqh). This book de-
monstrates that under certain conditions both concepts of justice do ac-
tually coincide in the established practice of moderate interpretation of
sharia, which is manifest in laws, rulings and legal practices in Muslim
countries, as well as in religious discourse (see 1.5).
Moderate practice has a long tradition in Islam. Akbar, a Mughal em-
peror in India (1591) who was leading a vast Muslim empire in an age
when in Europe the ‘Inquisitions were in full swing’, promoted free-
dom of religion and ‘insisted that we should be free to examine whether
reason does or does not support any existing custom, or provides justifi-
cation for ongoing policy’. This Muslim emperor figures in Amartya
Sen’s The Idea of Justice also as a fierce proponent of the freedom of re-
ligion (Sen 2009: 36-39). Recent studies of sharia by Abou el-Fadl
(2005), Ardjomand (2008), Feldman (2008), and Hallaq (2009) all
highlight the old ‘Islamic constitutional state’ and the ‘Circle of Justice’,
providing many historical examples of what contemporary Western
TOWARDS COMPARATIVE CONCLUSIONS 651

lawyers would call ‘legality’, ‘due process’, and, indeed, ‘justice’. Islamic
legal history is more than what puritans often suggest it is. As Hallaq
demonstrates in his 2009 work, the historical archives of sharia and ru-
ler’s law contain many treasures to be discovered and valued as the
building bricks of a strong moderate tradition.
In the long term the processes of state formation and socio-economic
change will probably contribute to the convergence of sharia and the
rule of law. Essentially, for legal development there is no main route
other than through the state, its laws, its legal processes and institu-
tions. Meanwhile, the emancipation of women, the democratisation of
politics, and the increase in respect for human rights are developments
that cannot be denied or halted. After nationalisation and adaptation of
sharia, we are now witnessing its democratisation and constitutionalisa-
tion. Sharia-based laws, therefore, are increasingly adapted – by legisla-
tures and courts – and applied in accordance with the prevailing sense
of justice, as our country studies demonstrate.
This puts huge responsibilities on the legal institutions that have
been established for these purposes. The country studies in this book
suggest that most legislatures, bureaucracies and courts in the Muslim
world have made considerable progress in a few decades time. Harding,
referring to Malaysia, argues that modern legal institutions are, in prin-
ciple, able to bring ‘the problem of Islam and constitutionalism’ to a
peaceful solution, even though their work is complicated by political
controversies and intellectual confusion. In countries such as Turkey,
Pakistan, and Egypt, fairly independent courts play key roles in accom-
modating or even solving fundamental conflict. The very fact that these
conflicts are dealt with in a legal procedural manner, is a clear sign of
hope that, as Harding puts it, the mechanisms of modern law are cap-
able of structuring and moderating many of the fundamental conflicts
between sharia and the rule of law (see 14.10). Generally speaking,
though, the state of legal institutions in the developing world is far
from ideal, and much remains to be done, but at least they are there,
and channel conflicts.
While professional jurists operate from the end of national law, much
work lays also ahead at the other end, i.e. for religious scholars to make
constructive use of the intellectual heritage of the fiqh. Mir-Hosseini
shows how in Iran ulama have taken the lead in intense discussions
about ways to make interpretations compatible with contemporary as-
pirations, notably with human rights. Scholars therefore are increas-
ingly trained in the new methodologies, as Hallaq discusses in the last
chapter of his latest book. Egypt’s Ashmawi, Syria’s Shahrur, Kuwait’s
Abou el-Fadl, Pakistan’s Fazlur Rahman, Iran’s Soroush, Indonesia’s
Hazairin, were raised and studied in different Muslim countries, but
652 JAN MICHIEL OTTO

they all share a strong desire to reconcile sharia with modernity (Hallaq
2009: 500-542).
Puritans will remain a social and political force to reckon with. In re-
cent decades they have been associated with radicalism and violence,
without any credible and feasible perspective on justice for all (Fuller
2003). Perhaps their recent recourse to human rights and democracy
will open up more constructive and successful routes. In any case, they
will keep reminding the world that sharia remains a cornerstone of
Islam. And as long as the state’s legal systems keep suffering from ser-
ious shortcomings, many people will feel a strong desire for better gov-
ernance, for a better system of law. In such circumstances, God’s law,
the sharia, will remain an obvious reference for legal development, or
at least, a source of moral and political inspiration, as has been pro-
posed by An-Na’im in his visionary Islam and the Secular State (2009).
Vikør, in conclusion of his historical analysis of sharia, sees in most
Muslim countries

‘both a dichotomy between ‘state law’ and an independent

‘Sharı̄’a’ and – as under the medieval siyāsa – a merger of them
through the incorporation of Sharı̄’a-based rules into the codi-
fied laws of the state.’ (Vikør 2005: 346-347).

It is this incorporation, this merger, which has been the main theme of
this book. If the collaborative efforts of all contributors have provided
the reader with a realistic and balanced overview and a deeper insight
into the relationship between sharia and national law, our main objec-
tive has been achieved. Hopefully, this book will also serve as a useful
foundation for further comparative research, moving into three direc-
tions, as to include analyses of landmark decisions by the courts, of
field studies on local sharia-related practices, and, finally, initiate addi-
tional socio-legal studies of the sharia-based laws of other Muslim
countries.

Notes

1 As we learned from the country studies, the terms ‘Islamic court’, ‘sharia-court’ or
‘religious court’ are labels which in themselves contain little relevant information,
not any more than ‘national court’ or ‘general court’ for that matter. Some ‘Islamic’
or ‘religious courts’, like in Indonesia, are actually state courts, subordinate to a su-
preme court of a basically secular set-up. Elsewhere, for example in Saudi Arabia or
Iran, courts are not given such label, but the law they apply and their legal interpreta-
tions are clearly based on fiqh.
2 The next phase of this research project will address developments in the case law of
religious courts. Based on the country studies so far, our overall hypothesis is that
TOWARDS COMPARATIVE CONCLUSIONS 653

higher courts tend towards more moderate interpretations as compared to the some-
times strict interpretations in the rulings of lower courts.
3 See for an analysis of ‘the clash within the Islamic civilisation’, Trautner (1999).

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654 JAN MICHIEL OTTO

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Annexe: Tables

Table A.1 Twelve countries by socio-economic indicators

Country GDP/PPP Life expectancy Literacy rate, Official
Capita (US $ 2008) (M/F 2007) adult total development
(% of people aid (US $
aged 15 and Mln. 2007)
above)
Egypt 5460 68-72 66 (2007) 1,083
Morocco 4330 69-73 56 (2007) 1,090
Saudi Arabia 22950 71-75 85 (2007) -131
Sudan 1930 56-60 - 2,104
Turkey 13770 69-74 89 (2007) 797
Afghanistan .. ..-.. - 3,951
Iran 10840 69-73 82 (2006) 102
Pakistan 2700 65-66 54 (2006) 2,212
Indonesia 3830 69-73 92 (2006) 796
Malaysia 13740 72-77 92 (2007) 200
Mali 1090 52-57 26 (2007) 1,017
Nigeria 1940 46-47 72 (2007) 2,042
Source: The World Bank.
Data reports available:
http://web.worldbank.org/WBSITE/EXTERNAL/DATASTATISTICS/0,,contentMDK:
20535285~menuPK:1192694~pagePK:64133150~piPK:64133175~theSitePK:239419,00.html
(accessed March 2010)
656 ANNEXE: TABLES

Table A.2 Islamic state and state religion, in twelve countries

Islamic state1 Islam as state religion2
Egypt No Yes
Morocco Yes Yes
Saudi Arabia Yes Yes
Sudan No No
Turkey No No
Afghanistan Yes Yes
Iran Yes Yes
Pakistan Yes Yes
Indonesia No No
Malaysia No Yes
Mali No No
Nigeria No No
1
As a basis we took the standard text “nation A is an Islamic state.” This clause can be found in
the constitution of Morocco in the preamble; in Saudi Arabia article 1. Variants of this provision
include: Afghanistan, article 1, “Afghanistan is an independent, unitary, and indivisible Islamic re-
publican state”; Iran, article 1, “The form of government of Iran is that of an Islamic Republic”;
Pakistan, article 1, “Pakistan shall be a Federal Republic to be known as the Islamic Republic of
Pakistan.” Concerning those nations that are not Islamic states, the formulations of interest are:
Egypt, article 1, “The Arab Republic of Egypt is a democratic state based on citizenship. The
Egyptian people are part of the Arab nation and work for the realization of its comprehensive
unity.”. Sudan, article 1, defines its own nation as “(…) a country of racial and cultural harmony
and religious tolerance.” Turkey “is a democratic, secular and social state governed by the rule of
law” (article 2). Indonesia is founded on “the belief in One and Only God” (preamble and article
29, sub 1). (Source: http://www.law.cornell.edu/world, accessed on 10 March 2010)
2
As a basis we took the standard text “Islam is the state religion of state A.” These statements
are to be found in the constitutions of: Egypt article 2; Morocco article 6; Saudi Arabia article 1;
Pakistan article 2. Variants of the standard text are: Afghanistan (article 2): “Islam is the sacred
religion of Afghanistan”; Iran (article 12): “The official religion of Iran is Islam and the Twelver
Ja'fari school”; and Malaysia (article 3, sub 1) “Islam is the religion of the Federation”. Of the
nations that do not mention Islam as the state religion, Sudan is of particular interest: in article
1 it is stated: “Islam is the religion of the majority of the population and Christianity and tradi-
tional religions have a large following”. (Source: http://www.law.cornell.edu/world, accessed on
10 March 2010)
ANNEXE: TABLES 657

Table A.3 Sharia as main source of law, in twelve constitutions

Sharia as ‘a’ or ‘the’
main source1
Egypt Yes
Morocco No
Saudi Arabia Yes
Sudan Yes
Turkey No
Afghanistan Yes
Iran Yes
Pakistan Yes
Indonesia No
Malaysia No
Mali No
Nigeria No
1
The constitutional articles referred to are: Egypt, article 2; Saudi Arabia, article 1; Sudan, arti-
cle 65; Afghanistan, article 3; Iran, article 4; Pakistan, article 2A in relation to article 227.1

Table A.4 Principle of equality in twelve constitutions

Principle of equality Direct limitations
based on sharia1
Egypt Yes Yes
Morocco Yes No
Saudi Arabia No -
Sudan Yes No
Turkey Yes No
Afghanistan Yes No
Iran Yes Yes
Pakistan Yes No
Indonesia Yes No
Malaysia Yes No
Mali Yes No
Nigeria Yes No
1
Egypt (article 11): “The State shall guarantee harmonization between the duties of woman to-
wards the family and her work in the society, ensuring her equality status with man in fields of
political, social, cultural and economic life without violation of the rules of Islamic jurisprudence.”
Iran (article 20): “All citizens of the country, both men and women, equally enjoy the protection
of the law and enjoy all human, political, economic, social, and cultural rights, in conformity
with Islamic criteria.” Malaysia (article 8, sub 1) “All persons are equal before the law and are
entitled to the equal protection of the law.” Article 8, sub 5 states: “This Article does not invali-
date or prohibit: a) any provision regarding personal law; b) any provision or practice restricting
office or employment connected with the affairs of any religion, or of an institution managed by
a group professing any religion, to persons professing that religion.” The Pakistan constitution (ar-
ticle 25, sub 1-3) is very specific on the principle of equality for women: “All citizens are equal be-
fore the law and are entitled to equal protection of law. There shall be no discrimination on the
basis of sex alone. Nothing in this Article shall prevent the State from making any special provi-
sion for the protection of women and children.” (Source: http://www.law.cornell.edu/world, ac-
cessed on 10 March 2010)
658 ANNEXE: TABLES

Table A.5 Freedom of religion in twelve constitutions

Constitutional freedom Formal limitations based
of religion on Sharia1
Egypt Yes No
Morocco Yes No
Saudi Arabia No Yes
Sudan Yes No
Turkey Yes No
Afghanistan Yes No
Iran Yes No
Pakistan Yes No
Indonesia Yes No
Malaysia Yes No
Mali Yes No
Nigeria Yes No
1
Even though none of the nations researched, except for Saudi Arabia, directly and explicitly lim-
its freedom of religion on the basis of sharia, most of the Muslim nation are not neutral on reli-
gion. Many nations have Islam as a state religion. Examples are Morocco (article 6): “Islam shall
be the state religion. The state shall guarantee freedom of worship for all.” Afghanistan (article
2): “The religion of Afghanistan is the sacred religion of Islam. Followers of other religions are free
to perform their religious rites within the limits of the provisions of the law.” Many Muslim na-
tions have a dual norm on this point. Pakistan (article 20) has constitutional freedom of religion:
“Subject to law, public order and morality: a) every citizen shall have the right to profess, practice
and propagate his religion; and b) every religious denomination and every sect thereof shall have
the right to establish, maintain and manage its religious institutions.” At the same time,
Pakistan has in its constitution taken this right from the Ahmadiyya movement). The constitu-
tion of Indonesia includes freedom of religion (article 29, sub 1 and 2): “The State shall be based
upon the belief in the One and Only God” and “The State guarantees all persons the freedom of
worship, each according to his/her own religion or belief.” Its post-1998 amendments confirm
this in Article 28E, stating “(1) Each person is free to worship and to practice the religion of his
choice,[…] (2) Each person has the right to be free in his convictions, to assert his thoughts and
tenets, in accordance with his conscience. (3) Each person has the right to freely associate, as-
semble, and express his opinions. Yet the Indonesian state recognizes only a few religions. The im-
plication is that freedom of religion is limited to these religions.
(Source: http://www.law.cornell.edu/world, accessed on 10 March 2010)
ANNEXE: TABLES 659

Table A.6 Twelve criminal laws on illegality and punishment of apostasy

Illegality of apostasy Actual convictions and
executed punishments
Egypt No No
Morocco No No
Saudi Arabia Yes1 Not recently2
Sudan Yes Not since 1985
Turkey No No
Afghanistan Disputed No
Iran Yes, disputed Very rarely3
Pakistan No No
Indonesia No No
Malaysia Yes, some states, disputed Very rarely4
Mali No No
Nigeria No No
1
The penal law of Saudi Arabia is completely based on sharia. The death penalty applies in
cases of conviction of apostasy. If apostasy is proved, the execution will take place. In Sudan (arti-
cle 126, penal code) apostasy is also punishable by death.
2
The U.S. International Religious Freedom Report (2009) said the following: "Conversion by
Muslims to another religion (apostasy) and proselytizing by non-Muslims are punishable by
death under the Islamic laws adopted by the country, but there have been no confirmed reports
of executions for either crime in recent years." US International Freedom Report at http://www.
state.gov/g/drl/rls/irf/2009/127357.htm accessed on 25 February 2010.
3
In recent years there have been few confirmed reports on persecution of those who have con-
verted to Christianity. Concerning executions because of apostasy, in November 2009 a Kurdish
freedomfighter named Fattahian was hanged supposedly for enmity against God and apostasy.
4
In some states, such as Terengganu, Kelantan and Perlis, regulations were enacted to make apos-
tasy punishable. In Perlis the Islamiah Aqidah (Islamic religious belief ) Protection Enactment was
passed in 2000. ‘This law empowers the Judge in a Syariah Court to make an order detaining for up
to one year in an Aqidah Rehabilitation Centre a person who attempts to change his or her religion
if the person refuses to recant. Until now, this is the most extreme position taken with regard to the
issue of apostasy.’ Moreover, the constitutionality of such regulation is contested (Harding intra,
see 11.4).
Glossary

Adat – Custom (Malaysia, Indonesia).

Adat law – Customary law (Indonesia).

Alim (pl. Ulama) – Those who have been trained in religious sciences;
religious scholar. Also ‘Alim.

Amir – Traditionally, a military commander, leader, governor. In mod-

ern times it denotes membership in the ruling families of the mon-
archs and means ‘prince’.

Amir al-mu’minin – Literally ‘commander of the faithful’; title first at-

tributed to the second caliph, Umar ibn Al Khattab (634-644) and
adopted by numerous Muslim leaders throughout history, including
the king of Morocco. In Sudan called Qa´id al-mu`minin.

Awqaf (pl.) – See waqf (sing.).

Bad – Dari word for the practice of the exchange of women between fa-
milies when a crime is committed as compensation for the crime
(Afghanistan).

Baraka – Blessing conferred by God upon humankind. In popular

Islam manifest in the ability to perform miracles.

Bilad al-siba – Literally ‘the area of rebellion (dissidence)’; areas in

Morocco that were beyond the scope of control by the central authority.

Caliph – Term adopted by dynastic rulers of the Muslim world; transli-

teration of khalifah, meaning ‘successor’ referring to the successor of
prophet Muhammad as political-military ruler of the Muslim
community.
662 GLOSSARY

Da'wa – Missionary work; God’s way of bringing believers to faith and

the means by which prophets call individuals and communities back to
God.

Da'wa movement – Missionary movement. Seeks greater application of

Islamic laws and values in national life and articulates a holistic
Islamic perspective of social, economical and spiritual development.
Also Dakwah movement (Malaysia; Indonesia).

Dahir – Royal decree (Morocco); legal rule proclaimed as a decree by a

sultan.

Darar – Legal term meaning harm, damage, physical or psychological

injury. Generally used in the context of divorce; constituting a valid
ground for judicial divorce initiated by women. In Iran: ‘Osr va haraj:
‘hardship and harm’.

Diyah – See Diyya.

Diyanet – Office of Religious Affairs, within the administrative struc-

ture of the state as per 1982 (Turkey).

Diyya – Financial compensation payable to the victim or the victim’s

next of kin in case of a crime against a person, such as homicide, in-
fliction of wounds or battery in place of retribution (qisas) Commonly
referred to as ‘blood money’. Also, Diya (Sudan), Diyah (Dari,
Afghanistan), Diyat (Nigeria) Diyet (Turkey).

Ejtehād: – See Ijtihad.

Faqih (pl. fuqaha, foqaha) – Expert in Islamic jurisprudence (fiqh).

Faskh or fasakh – Annulment of marriage based on legally valid

grounds.

Fatwa – Legal opinion issued by Islamic religious scholars.

Fiqh – Islamic jurisprudence; the total product of human efforts to un-

derstand the divine will. Also feqh.

Fuqaha' (pl.) – See faqih (sing.).

Gharar – Uncertainty in contracts, prohibited in Islamic law.

GLOSSARY 663

Hadana – Care of child by the mother, as distinct from legal guardian-

ship (wilaya), which in general belongs to the father. After divorce, in
general custody belongs to the mother, at least until the child is consid-
ered no longer in need of a woman’s care.

Hadd – See Hudud.

Hajj – Yearly pilgrimage to Mecca in Saudi Arabia. The hajj is one of

the five pillars of Islam. All adults, if able, are required to perform it at
least once in a lifetime.

Halal – Permissible according to sharia.

Hanafi – Sunni school of jurisprudence.

Hanbali – Sunni school of jurisprudence.

Haram – Forbidden according to sharia.

Hijab – A covering worn by women over other clothing, drawn tightly

around the face and draping loosely down to the knees.

Hijra – Emigration of Prophet Mohammed from Mecca to Yathrib (la-

ter Medina) in 622 AD. This event marks the beginning of the Islamic
calendar.

Hirabah – Violence not sanctioned by Islamic law of war, including

hadd crimes such as armed robbery, or banditry, as defined under
Islamic law. Also, Hiraba (the Sudan).

Hisbah – Community morals; by extension the maintenance of public

law and order and supervising market transactions.

Hodūd – See Hudud.

Hudud (sing. Hadd) – Punishments fixed in the Qur’an for crimes con-
sidered as violations of God’s limits, namely theft, extramarital sex, un-
proven/wrongful accusation of extramarital sex, armed robbery, con-
sumption of alcohol – and, according to some schools of thought, apos-
tasy; one of four categories of crimes/punishment in Islamic penal law.
Also, Hodud (Iran); Hodūd (Dari); Hudood (Pakistan).

‘Iddah – Three-month period during which a divorced woman cannot

marry another man in order to make sure that she is not pregnant by
664 GLOSSARY

her ex-husband. Men are required to continue maintaining their ex-wi-

ves when the divorce is revocable (talaq al-raji).

Ijbar – Doctrine under Maliki law providing for the overruling power of
the father or guardian to act purely (theoretically) in the girl’s best in-
terest. In Nigerian context, ijbar manifests itself for example in the
marrying off of young girls to much older men.

Ijtihad – Independent interpretation of the Quran and Sunna.

Traditionally, only allowed when Quran and Sunna are silent on a par-
ticular issue. Also Ejtehād (Iran, Afghanistan).

Ijma‘ – Consensus or agreement among religious scholars. One of the

four legal sources of Islamic law.

Jezye or jizyah – A special poll tax levied from non-Muslims in Islamic

societies. Traditionally, meant as a compensation for not entering the
military service.

Jihad – ‘Struggle’ or ‘striving’, in Islam usually meant in the sense of

‘striving in the way of Allah’, which may range from personal striving
to correct one’s own faults to armed warfare against those labeled as
unbelievers.

Jinayah – Islamic penal law.

Jirga – local or regional assembly. Took, still take, primary role in dis-
pute settlement for tribal groups (Pakistan, Afghanistan).

Jomhuriyat – Republic, ‘republicanism’ (Iran).

Kafala – Agreement with third party to financially support a family, in

practice a form of adoption, where children retain membership to their
original family.

Khalwat – Close proximity between unmarried persons of the opposite

sex. Criminal offence under Islamic law in Malaysia, and Aceh,
Indonesia.

Kholc – See Khul’.

Khul‘– A form of divorce by mutual consent in which the wife asks her
husband to repudiate her in exchange for waiver of her financial rights
GLOSSARY 665

(e.g. waiver of alimony payments or return/forfeit of dower). Also, Ibra’

(Egypt); Kholc (Afghanistan); Khuluk (Indonesia).

Khuluk: See Khul‘.

Liwat – Hetero- or homosexual anal intercourse. Also Lawat (Iran).

Madhhabs – Muslim schools of jurisprudence.

Madrasa or Madāres (Dari), Madrasah (Indonesia); Medersas (Mali),

Medrese (Turkey) – Religious schools; religious colleges for higher
studies.

Maharim – See mehrem.

Mahr – Islamic dowry, part of the ‘wife’s dues’, may be paid at once or
split into two payments, one upon marriage and one part later. One of
the requirements for a valid marriage.

Majlis – Council. Also majelis.

Majlis al-shura – Consultative council, legislative council. See shura.

Malik – King.

Maliki – Sunni school of jurisprudence.

Marja‘ (pl. maraje‘) – Spiritual guide, recognised after a long process of

acquiring respect for his teaching and scholarship; especially after qua-
lifying as an ayatollah by writing a legal treatise or manual (resaleh) – a
model for those who have chosen to follow him in religious matters
(Iran).

Marja‘iyat – Ultimate authority of the Marja (Iran).

Marsum – Royal decree.

Maslaha – Public interest; a basis for law. Also maslahat.

Medersas – See madrasa.

Mehrem – A male relative of a woman who is religiously banned from

marrying that woman under any circumstances.
666 GLOSSARY

Mecelle or Mejelle or Majalla – The Ottoman civil code (late 1800s).

Although the Mecelle only remained in force in Turkey until 1926, in
other parts of the former Ottoman Empire it remained in use for much
longer. The Mecelle codified civil law, excluding family law. The sub-
stance of the code was based on the Hanafi legal school (madhhab) that
enjoyed official status in the Empire. However, using the method of
preference (takhayyur), it also incorporated legal opinions that were
considered more appropriate to the time, including some derived from
non-Hanafi madhhab.

Misyar marriage – Ambulant marriages, or marriages in which spouses

agree that the wife will continue to live with her parents, thus freeing
the husband of his obligation to provide marital domicile for her.

Mojāhedīn (or Mujahidin) movements – Literally, movements who en-

gage in jihad. Refer to Islamic resistant groups. See also jihad.

Mojtahed or mujtahid – scholar qualified to perform ijtihad or indepen-

dent interpretation of the sources of Islamic law.

Muamalah – Commercial law. Also muamalat.

Mufti – ‘Official interpreter of Islamic law’ or a member of the commu-

nity of religious scholars (the ‘ulama), who is competent to give his
authoritative legal opinion (fatwa) on a particular issue. The term mufti
can have multiple meanings. In the Egyptian context a state mufti re-
fers to the position held by the highest (supreme) advisor on Islamic
matters to the state, also known as the ‘grand mufti’. Also Müftü
(Turkey).

Muhtasib – Holder of the office of al-hisbah; market inspector

(Morocco). Also see hisbah.

Mullah – Islamic cleric. The principle interpreters of Islamic law for

Shiis (Afghanistan, Iran).

Musharaka – Generic term in Islamic commercial law for business

partnership.

Murabaha – Islamic banking principle in which a bank purchases a

good on behalf of the client and later resells it to the client at a
marked-up price.
GLOSSARY 667

Mudaraba – Legal contractual arrangement under Islamic law between

two partners for profit sharing.

Muta‘ – Obligatory financial compensation to be paid by the husband

following the dissolution of marriage on the basis of his repudiation if
the wife did not play a role in bringing about the repudiation and did
not consent to it. Also Mut´a (Sudan, Iran); Sigheh (Iran).

Nafaqa – Husband’s duty to provide maintenance to his wife and chil-

dren, at least consisting of housing, food and clothes.

Nasab – Spiritual lineage or genealogy.

Nezām-nāme

– See Nizam (Saudi Arabia).

Nizam – Ordinance or regulation; order, system, organisation.

Intended to infer ‘man-made law’, as opposed to that deriving from
Allah. Compare qanun.

Nizamiyye – System of state courts.

Ojrat al-methl – ‘Exemplary wages’, or monetary compensation for the

work a woman has done during marriage (i.e. raising children and
housework, which she is not obliged to do by classical jurisprudence)
to be paid by the husband, provided that the divorce is not initiated by
her and is not caused by any fault of her own (Iran). Compare muta’.

Örf – See ´Urf.

Orfi courts – State courts that had jurisdiction over matters involving
the state (Iran).

Osr va haraj – See darar.

Pancasila – Translating as ‘five pillars’, Pancasila refers to the five prin-

ciples of state ideology, mentioned in Indonesia’s constitutional
preamble.

Panghulu – Religious scholar (Indonesia).

Purdah – The seclusion of women, particularly married women.

Qadhf – Wrongful/slanderous accusation of illicit sex (Nigeria), hadd

crime. Also, Qazf (Iran).
668 GLOSSARY

Qadi – An Islamic (Muslim) judge charged to apply the sharia in cases

brought before him: Also Khadi (Malaysia), Kali, Alkali (Nigeria).

Qanun – Laws and regulations enacted by a government. Originally in-

tended as supplement to Islamic law in matters it left insufficiently
regulated. Also Kanun (Turkey).

Qes,ās, – ‘Retaliation’ in Dari. Also, Qisas, Qeses.

Qisas – Retaliation in kind for woundings or killings: an eye for an eye,

etc. Also Qesas (Iran); Qes,ās, (Afghanistan), Qeses.

Qiyas – Analogical reasoning. A method to deduct legal prescriptions

from the Qur’an and Sunna.

Rajm, Rajam or Rejm – Hadd punishment by stoning of an adulterous

woman.

Riba – Arabic for ‘interest’ in fiscal setting. Prohibited in Islamic law.

Ridda – Apostasy from Islam. Hadd crime.

Salaf – Early pious Muslim from the first three generations following
the time of the Prophet Mohammed, or Islamic forefathers.

Salafiyya movement – Name given to a reform movement led by Jamal

al-Din al-Afghani and Muhammad Abduh at the turn of the twentieth
century. Emphasised restoration of Islamic doctrines to pure form, ad-
herence to Qur’an and Sunna, rejection of the authority of later inter-
pretations, and maintenance of the unity of the ummah. Viewed politi-
cal and social reforms as essential requirements of revitalisation of the
Muslim community. In the late twentieth century, the term came to re-
fer to puritan reformers.

Salafism – See Salafiyya movement.

Sariqah – Theft meeting certain conditions under Islamic law . Hadd

crime. Also, Sariqa (the Sudan); Serqat (Iran). There are two types: sari-
qah al sughra crimes that are punishable with the amputation of the
right hand and sariqah al kubra crimes punishable with cross-amputa-
tion of the right hand and the left foot.
GLOSSARY 669

Shafi’I Sharif (sing.) ashraf, shurafa (pl.) – Man claiming descent from
prominent ancestors usually the Prophet Mohammed through his
grandson Hassan; position of governor (Saudi Arabia).

Shiqaq – Reconciliation procedure after enduring marital discord, pro-

viding one of the bases for the dissolution of marriage initiated by wo-
men. Two arbiters (hakam), one of both families of the spouses, at-
tempt to reconcile the couple. When reconciliation fails the marriage is
dissolved.

Shubha – An illicit act that seems a licit one, or legal doubt. In Islamic
law a ground to reduce severity of punishment in criminal cases.
Under Moroccan law a valid ground for establishment of descent in
cases where there is a formal lack of a valid marriage but the couple
are maintaining conjugal relations.

Shura – Consultation as basis of governance, based on quranic injunc-

tion to Muhammad to consult with his followers. By some religious
scholars seen as the Islamic basis for democracy.

Shurb – Drinking wine, and by extension imbibing other intoxicants.

Hadd crime. Also Mosker (Iran).

Siyasa shar‘iyya – Regulatory authority of the state as recognised by

Islamic law. Also siyasa, al-siyada.

Sufism – Islamic mysticism. Sufis strive to constantly be aware of God’s

presence, stressing contemplation over action, spiritual development
over legalism and cultivation of the soul over social interaction.

Sukuk – Islamic bonds. An Islamic product or service now being of-

fered by conventional banks in Saudi Arabia, although traditionally
such constructions would not have been permissible, as bonds typically
involve interest-based constructions.

Sunna – Traditions and teachings of the Prophet Muhammad.

Ta’azir – See ta’zir.

Tafriq – See tatliq.

Takaful – Form of insurance that is considered ‘sharia compliant’.

670 GLOSSARY

Takhayyur – Method of selection of legal sources of Islamic jurispru-

dence (fiqh) that enabled Muslims to follow legal interpretations of
Islamic schools of jurisprudence (madhhab) other than their own.

T,alaq – Traditionally, unilateral divorce by the husband without having

to produce legal reason, effective upon his pronouncement of the
divorce. Talaq that are revocable in the waiting period of the wife (see
iddah) are called talaq al-raji. The third time a talaq is uttered for the
same marriage becomes irrevocable and is called talaq al-bain. Also
T,alāq (Dari), Talak (Indonesia).

Tarbiyah – education.

Tariqat (pl. tariqas) – Religious Sufi association. Also tarekat, tarikat.

Taqlid – Imitation or tradition. Refers to the obligation to conform to a

single school of Islamic jurisprudence (in Sunni Islam: the Hanafi,
Hanbali, Maliki, and Shafi‘i schools).

Tatliq – Judicial form of divorce based on valid grounds, including a

breach of the marriage contract. In many countries valid divorce
grounds are incorporated in standard marriage contracts. Also Tafrīq,
taklik, takliq.

Ta’zir offences – Punishment for crime not measuring up to the strict

requirements of the hadd punishments, although they are of the same
nature or those for which specific punishments have not been fixed by
the Qur’an. In classical Islamic law, offences defined and punished at
the discretion of the qadi in particular cases coming before him (‘right
to censure’). In modern penal law these are defined and the punish-
mentsare prescribed by statute. Also Ta’azir (Nigeria); Ta‘zirat (Iran);
Tazir (Turkey).

`Udul (sing. `adl) – Professional Islamic witnesses who write down

documents for all matters in which Islamic law applies.

Ulama (sing. alim, scholar) – Islamic scholars; those learned in the

theology and law of Islam and the literature, mostly in Arabic, proper
to these disciplines. Also, ‘Ulama (e.g. Saudi Arabia), Ulama’ (the
Sudan), `Ulama' (Morocco).

‘Umma’ – ‘Community of all Muslims’.

´Urf – Custom. Also Örf (Turkey).

GLOSSARY 671

Urfi marriages – Unregistered marriages that while often considered

valid are not legally recognised by the courts and are thus in legal lim-
bo (Egypt); also ‘unregistered, traditional marriages’ (´Urfi, the Sudan).

Ushr – A religious tax on agricultural proceeds.

Velayat-e faqih (Iran) – Guardianship of the faqih, or expert in Islamic

jurisprudence.

Wakf – See waqf.

Wali – Male guardian for the bride required to make a marriage valid
in Islamic law.

Walwar – ‘Bride price’ (Dari), or transfer of money from the groom to

the bride’s family. Customary tribal tradition in Afghanistan whereby
the groom or his family has to pay to the head of the bride’s household
a sum of money (or commodity) to reimburse the parents of the bride
for the financial loss they suffered while raising their daughter.

Waqf – A domain constituted into a pious endowment; charitable trust.

Wilaya – Legal guardianship over children. In general hold by the

father or his family.

Zakat – Required almsgiving that is one of the five pillars of Islam.

Zina – Unlawful sexual intercourse; fornication; adultery. Hadd crime,

that must be established by testimony of four adult male witnesses.
Also Zena (Iran).
About the contributors

Maurits Berger is a lawyer and Arabist. He holds the chair of Islam in

the contemporary West at the Institute for Religious Studies at Leiden
University, and is a senior research associate with the Clingendael
Institute for International Relations in The Hague. He has written ex-
tensively on Sharia and Islamic law in the Arab as well as the Western
world, and translated the Moroccan family law into Dutch.

Léon Buskens is Professor of Law and Culture in Islamic Societies, both

at the Faculty of Humanities as well as at the Law Faculty of Leiden
University, including the Van Vollenhoven Institute. He completed his
degree in anthropology at the University of Nijmegen and in 1993 ob-
tained his Ph.D. in Leiden with a thesis on Moroccan family law. His
research focuses mainly on the relationship between Islamic norms and
practises.

Albert Dekker is coordinator of the library of the Leiden University Law

Faculty, with particular focus on the collection of the Van Vollenhoven
Institute. The collection includes many works on modern and colonial
Indonesia. He graduated in law and library sciences in Groningen. He
has published law & development bibliographies in the Van
Vollenhoven Publication Series and authored and co-authored two index
volumes on the law and jurisprudence of the Netherlands Indies, pub-
lished by the Royal Institute of Linguistics & Anthropology.

Esther van Eijk is a Ph.D. Candidate at Leiden University in the

Netherlands, studying family law in Syria. She completed degrees in
law and Arabic at Leiden University and specialises in Islamic law. She
contributed to a variety of projects, including a publication on the UN
Declaration on the Elimination of Violence Against Women, and the
Sharia and National Law project, carried out by the Van Vollenhoven
Institute.

Andrew Harding is Professor of Asia-Pacific Law at the University of

Victoria, BC (Canada). He is a former Head of Department and
Professor of Law in the Law School, School of Oriental and African
674 ABOUT THE CONTRIBUTORS

Studies (SOAS), University of London and formerly taught at the

Faculty of Law, National University of Singapore, and as a Visiting
Professor at Harvard Law School. He is the author of ‘Law, Government
and the Constitution in Malaysia' (1996). He is co-editor of
‘Constitutional Courts: A Comparative Study’ (2009), and ‘New Courts
in Asia’ (2010). He is presently working on books on Thailand and
Malaysia for the Hart Publishing series ‘Constitutional Systems of the
World’, of which he is also co-general editor.

Mustafa Koçak is currently the Professor of Public Law and Founder

Dean of the Okan University Faculty of Law in Istanbul, Turkey. He stu-
died law at the University of Istanbul, held positions as lawyer and jour-
nalist and was a temporary researcher at the law faculty of the
University of Glasgow. He did research into the history of Turkish (con-
stitutional) law, sovereignty, political parties and human rights.

Olaf Köndgen is currently preparing a Ph.D. dissertation on Islamic

criminal law in the Sudan (University of Amsterdam). He holds an M.
A. in Islamic Studies from the Free University of Berlin and worked as
Senior Acquisitions Editor on Islam and the Middle East for Brill
Academic Publishers in Leiden. He published on political and econom-
ic issues related to the Sudan, Egypt, Jordan, Lebanon and Israel.

Martin Lau is a Reader in Law at the School of Oriental and African

Studies, University of London, where he teaches courses on South
Asian law. He is a regular visitor to Pakistan and has published widely
on the country’s legal system.

Ziba Mir-Hosseini is an independent consultant, researcher, and writer

on Middle Eastern issues, based at the London Middle East Institute
and the Centre for Middle Eastern and Islamic Law, both at SOAS,
University of London; since 2002 she has been Hauser Global Law
Visiting Professor at New York University. She specialises in gender, fa-
mily relations, Islamic law and development, and is a founding member
of Musawah Global Movement for Equality and Justice in the Muslim
Family.

Philip Ostien is an independent scholar, working from Madison,

Wisconsin, USA. He received his Ph.D. in philosophy from the
University of Pennsylvania, and also holds J.D. and LL.M. degrees from
the University of Iowa. Having taught at the University of Iowa and
practiced law in Des Moines, Iowa, in 1991 he joined the Faculty of Law
of the University of Jos, Nigeria, where he taught (with some interrup-
tions) until his retirement in 2007. He is the author or editor of a
ABOUT THE CONTRIBUTORS 675

number of works on the laws and legal institutions of northern Nigeria

and the programmes of sharia implementation that began there in
1999.

Jan Michiel Otto is Professor of Law and Governance in developing

countries and director of the Van Vollenhoven Institute for Law,
Governance, and Development. He studied law at the University of
Leiden and wrote his Ph.D. thesis on public administration in rural
Egypt. Since 1983 he has conducted comparative studies of law, govern-
ance, and development in Asia, Africa and the Middle East.

Mohammad Hamid Saboory is an independent consultant, providing ser-

vices to several NGOs in Europe and North America on legal reform
and development issues related to Afghanistan. He holds an M.A. in
International Relations from Syracuse University and an M.A. in
Middle/Near Eastern Studies from New York University. He studied
law in Kabul and as researcher contributed to projects run by the Max-
Planck Institute for Comparative and International Private Law in
Hamburg.

Dorothea E. Schulz is professor of anthropology at the University of

Cologne. Her expertise is on Islam in Africa, the anthropology of reli-
gion, gender studies, media studies, public culture, and the anthropol-
ogy of the state. She is currently a professor at the University of
Cologne. She obtained her Ph.D. from Yale University, USA, and her
habilitation (second docoral degree required for promotion in the
German academic system) from the Free University, Berlin. She taught
at Cornell University, New York, and Indiana University, Bloomington,
USA. Her regional expertise is in West Africa (particularly Mali) and
East Africa (Uganda).

Nadia Sonneveld is a senior researcher on the implementation of

Islamic law in practice affiliated with the School of Oriental and African
Studies (SOAS), University of London, and the Van Vollenhoven
Institute, University of Leiden. While earlier research focused on Egypt
and Indonesia, she now focuses on comparative research in a number
of Muslim majority countries. She graduated in law in 2009, Arabic in
2002 and cultural anthropology in 2000.

Nadjma Yassari is a senior fellow at the Max-Planck-Institute for

Comparative and International Private Law in Hamburg, where she
heads the Department for the Laws of Islamic countries. She was born
in Iran and studied law in Austria, France and the United Kingdom.
Her main fields of research are private national and private
676 ABOUT THE CONTRIBUTORS

international law of Islamic countries, in particular the Arab Middle

East, Iran and Afghanistan with a special focus on family and inheri-
tance law. Since April 2009 she is leading a Max-Planck Research
Group investigating the scope and limits of contractual freedom in
Islamic family law.